Amicus Curiae Brief — Vacco v. Quill

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Nos. 95-1858 and 96-110

Soupreme Court of the United ‘ates

October Term, 1996

DENNIS C. VACCO, et al.,

*; Petitioners,

TIMOTHY E. QUILL, M.D.., ef ai.,

Respondents.

STATE OF WASHINGTON, et ai.,

Petitioners,

¥.

HAROLD GLUCKSBERG, M.D.., et al.,

Respondents.

On Writ of Certiorari to the United States Courts of Appeals

for the Second and Ninth Circuits

. BRIEF AMICI CURIAE SUPPORTING RESPONDENTS OF THE

AMERICAN CIVIL LIBERTIES UNION, AMERICAN CIVIL

LIBERTIES UNION OF WASHINGTON, NATIONAL GRAY

PANTHERS PROJECT FUND, (continued on back of cover)

KAREN E. Boxx CAMERON CLARK

KELLER ROHRBACK (Counsel of Record)

1201 Third Ave., Suite 3200 CLAUDIA L. HAMMERMAN

Seattle, WA 98101 DOUGLAS A. BERMAN*

(206) 623-1900 1285 Avenue of the Americas

OF Couns mie Sa

STEVEN R. SHAPIRO

AMERICAN CIVIL LIBERTIES

UNION FOUNDATION

132 West 43rd Street

New York, NY 10036 *Awaiting admission to the Bar of the

(212) 944-9800 State of New York

——— ccc ct

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TABLE OF CONTENTS

INTERESTS OF AMICICURIAE ................. l

SUMMARY OF ARGUMENT ...............___. l

Il.

THE DUE PROCESS CLAUSE OF THE

FOURTEENTH AMENDMENT PROTECTS

THE PERSONAL CHOICE OF A MENTALLY

COMPETENT, TERMINALLY ILL INDIVIDUAL

TO END UNENDURABLE SUFFERING AND

HASTEN iNEVITABLE DEATH ..........._.. 2

A. The Right of a Mentally Competent, Terminally

Ill Person to Choose an End to Suffering by

Hastening an Inevitable Death Is Deeply Rooted

in this Nation’s History and Tradition.......__. 4

B. The Right of a Mentally Competent, Terminally

lil Person to Choose an End to Suffering by

Hastening an Inevitable Death Is Implicit in the

Concept of Ordered Liberty ................ 9

A BLANKET PROHIBITION AGAINST AID

TO SUICIDE UNDULY BURDENS THE RIGHT

OF THE TERMINALLY ILL TO MAKE

RATIONAL END OF LIFE DECISIONS......._.. 14

A. A Blanket Ban on Assistance to Suicide Is a

Substantial Obstacle to the Right of the

Terminally Ill to End Their OO 15

B. The States’ Asserted Interests Do Not Justify an

Absolute Ban on Physician Aid in Dying for the

NS ab dg ne 6 bb. bo 6 aa aera dc & <a 17

1. Interest in Preserving Each Citizen’s Life. __ . 17

TABLE OF CONTENTS — Continued

Page

2. Preventing Undue Influence or Mistake ...... 19

3. Implicating Doctors in Killing and

Slippery-Slope Arguments ..............

Ill. BECAUSE TERMINALLY ILL PATIENTS ON

LIFE SUPPORT HAVE THE RIGHT TO MEDICAL

ASSISTANCE IN HASTENING DEATH, DENYING

TERMINALLY ILL PATIENTS NOT ON LIFE

SUPPORT MEDICAL ASSISTANCE IN HASTENING

DEATH VIOLATES THE EQUAL PROTECTION

CLAUSE OF THE FOURTEENTH AMENDMENT

GREE seccckhsdudeecdudaanbeséecibens

ill

TABLE OF AUTHORITIES

CASES Page

Compassion In Dying v. Washington,

79 F.3d 790 (9th Cir. 1996) ............. passim

Cruzan v. Director, Missouri Dept.

of Health, 497 U.S. 261 (1990) .......... passim

Daniels v. Williams, 474 U.S. 327 (1986) ............ 2

Eisenstadt v. Baird, 405 U.S. 438 A 10

Estelle v. Gamble, 429 U.S. 97 (1976) .............. 12

Griswold v. Connecticut, 381 U.S. 479 Pee 10

Hudson v. McMillian, 503 U.S. 1 (1992) ............ 12

Ingraham v. Wright, 430 U.S. 651 (1977) ............ 12

Jacobson v. Massachusetts, 197 U.S. 11 eS 6 ons 11, 12

Loving v. Virginia, 388 U.S. 1 (1967) .............. 10

Moore v. City of East Cleveland,

he ge OS ee 3, 10, 15

Palko v. Connecticut, 302 U.S. 319 (1937) ........... 3

Parham v. J.R., 442 U.S. 584 (1979) ............... 12

Planned Parenthood of Southeastern Pennsylvania v.

Casey, 505 U.S. 833 (1992) ............. passim

Poe v. Oliman, 367 U.S. 497 (1961) ............... 3

TABLE OF AUTHORTIES — Continued

Page

Quill v. Vacco, 80 F.3d 716 (2d Cir. 1996) ........ passim

Rochin v. California, 342 U.S. 165 (1952) ......... 3, 11

Roe v. Wade, 410 U.S. 113 (1973)... 2... eee 4, 10

Royster Guano Co. v. Virginia, 252 U.S. 412 (1920) ..... 24

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

Vitek v. Jones, 455 U.S. 480 (1980)... 2.02... 00005 12

Washington v. Harper, 494 U.S. 210 (1990) ....... 11, 12

Winston v. Lee, 470 U.S. 753 (1985)... 2.6... 0. eee i

Wooley v. Maynard, 430 U.S. 705 (1977) ............ 18

STATUTES

N.Y. Pub. Health Law §§ 2960 et seq. (McKinney 1993) .. 19

N.Y. Pub. Health Law § 2981 (McKinney 1993) ........ 19

Or. Rev. Stat. §§ 127.800-127.995 (1995) ............ 22

Re Ce Bee Eee os ons bbe e66eeees owees 2

MISCELLANEOUS

ED . 4 6:66 6b 6Oo018 6 > 60. 0O4 08 60K OWE 5

M. Babst Battin & David J. Mayo, Suicide:

The Philosophical Issues (1980) .......... 5, 6, 8

TABLE OF AUTHORTIES — Continued

Howard Brody, Assisted Death — A

Response to Medical Failure, 327 New Eng.

Oe ee 13

Maria T. CeloCruz, Note, Aid-In-Dying: Should We

Decriminalize Physician-Assisted Suicide and

Physician-Committed Euthanasia ?,

18 Am. J.L. & Med. 369 (1992) ............. 6

Ronald Dworkin, Life's Dominion: An Argument

About Abortion, Euthanasia, and Individual

Ee 14

Clyde H. Farnsworth, Vancouver AIDS Suicides

Botched, N.Y. Times, June 14, 1994, atCi2 ..... 17

K. Frederickson, Torn Mother: I Helped Her Pass On,

Oregon Bulletin, May 16, 1994, at Al ......... 17

Gina Kolata, AIDS Patients Seek Solace in Suicide

But Many Risk Added Pain in Failure,

N.Y. Times, June 14, 1994, atCl ............ 17

John Locke, The Second Treatise of Government

(C.B. Macpherson ed. 1980) ................ 7

New York State Task Force on Life and the Law,

When Death Is Sought; Assisted Suicide and

Euthanasia in the Medical Context (1994) .......... 21

Note, Physician-Assisted Suicide and the Right to

Die with Assistance, 105 Harv. L. Rev. 2021 (1992) .. 7

Sherman B. Nuland, How We Die (1993) ............. 5

TABLE OF AUTHORTIES — Continued

Thomas A. Preston, Killing Pain, Ending Life,

N.Y. Times, Nov. 1, 1994, at A27..........

Julia Pugliese, Note, Don't Ask Don't Tell:

The Secret Practice of Physician-Assisted Suicide,

44 Hastings L.J. 1290 (1993) ............

Timothy G. Quill, Death and Dignity: A Case of

Individualized Decision-making, 324 New Eng.

Pe Ge SEED. 0 0'4 6 be) 0 bien dee ews

O.R. Russell, Freedom to Die (1975) ..........

The Republic of Plato (Alan Bloom ed. 1968) .....

Catherine D. Shaffer, Note, Criminal Liability for

Assisted Suicide, 86 Colum. L. Rev. 348 (1986)

Jeff Stryker, A Bedside Manner for Death and Dying,

N.Y. Times, May 19, 1996, § 4, at3 .......

Patricia A. Unz, Note, Euthanasia: A Constitutionally

Protected Peaceful Death, 37 N.Y. L. Sch. L.

en Gee He 26 60 eet cewuun eds was

INTERESTS OF AMICI CURIAE

The interests of amici curiae are set forth in the appendix to

this brief.

SUMMARY OF ARGUMENT

At issue in this case is no more and no less than (1) whether

a mentally competent, terminally il! person suffering intolerably has

a liberty interest protected by the Fourteenth Amendment in

choosing to hasten the timing of an inevitable death, (2) whether a

State's interests can justify a blanket prohibition on physicians

Providing assistance in the exercise of such a liberty interest, if it

$0 exists, and (3) whether a state can justifiably grant certain

persons the opportunity to make the choice to hasten death while

denying to other, similarly Situated persons the same opportunity.

The right of a competent, terminally ill person to avoid excru-

ciating pain and embrace a timely and dignified death bears the

sanction of history and is implicit in the concept of ordered liberty.

The exercise of this right is as central to Personal autonomy and

bodily integrity as the exercise of rights safepuarded by this Court's

decisions relating to marriage, family relationships, procreation,

contraception, child rearing and the refusal or termination of life-

Saving medical treatment. In particular, this Court’s recent

decisions concerning the right to refuse medical treatment and the

right to abortion instruct that a mentally competent, terminally ill

person has a protected libert, interes: in choosing to end intolerable

suffering by hastening his or her own death.

A state's categorical ban on physician assistance to suicide —

as applied to competent, terminally ill patients who wish to avoid

unendurable pain and hasten inevitable death — substantially

interferes with this protected liberty interest and cannot be

sustained. Though a state has significant interests in ensuring that

the right at issue here is not abused or misused, an absolute ban on

physician assistance unduly burdens the proper exercise of the right

of the terminally ill to seek freedom from pain through

death,especially given the less restrictive alternatives that are

Letters of consent to the filing of this brief have been lodged with the Clerk

of the Court pursuant to Rule 37.3.

available to a state and that would in fact greater serve its claimed

interests.

Indeed, states typically and successfully employ less restrictive

alternatives than blanket prohibitions for terminally ill patients

depending on life-sustaining treatment who wish to hasten death.

States have recognized the right of this class of terminally ill

patients to escape pain and hasten death through the termination or

refusal of such life support and accompanying administration of

large and lethal doses of pain-suppressing medication. Accordingly,

a state denies equal protection of its laws when it provides that one

class of persons may exercise this right while others who are

similarly situated for all relevant purposes are wholly denied the

opportunity to exercise the same right for the same reason.

ARGUMENT

THE DUE PROCESS CLAUSE OF THE FOURTEENTH

AMENDMENT PROTECTS THE PERSONAL CHOICE OF

A MENTALLY COMPETENT, TERMINALLY ILL

INDIVIDUAL TO END UNENDURABLE SUFFERING AND

HASTEN INEVITABLE DEATH

The Due Process Clause of the Fourteenth Amendment

declares that no State shall “deprive any person of life, liberty, or

property, without due process of law.” U.S. Const. Amend. XIV.

The Due Process Clause has long been held to contain a substantive

component forbidding certain government actions regardless of pro-

cedural fairness. See Planned Parenthood of Southeastern

Pennsylvania v. Casey, 505 U.S. 833, 846 (1992); Daniels v.

Williams, 474 U.S. 327, 331 (1986).

The content of substantive due process — i.e., the constitu-

tionally protected interests comprehended within the term “liberty”

— cannot be determined by easy reference to any rule, text or

historical period. “Neither the Bill of Rights nor the specific

practices of States at the time of the adoption of the Fourteenth

Amendment marks the outer limits of the substantive sphere of

liberty which the Fourteenth Amendment protects.” Casey, 505

U.S. at 848. In the words of Justice Harlan,

the full scope of the liberty guaranteed by the Due Process

Clause cannot be found in or limited by the precise terms of

the specific guarantees elsewhere provided in the

Constitution.... It is a rational continuum which, broadly

speaking, includes a freedom from all substantial arbitrary

impositions and purposeless restraints.

Poe v. Oliman, 367 U.S. 497, 543 (1961) (Harlan, J., dissenting).

Accordingly, in determining the reach of the “least specific and

most comprehensive protection” that is the Fourteenth

Amendment’s guarantee of liberty, courts must employ considered

reason and remain “duly mindful of reconciling the needs both of

continuity and of change in a progressive society.” Rochin v.

California, 342 U.S. 165, 170, 172 (1952); see also Casey, 505

U.S. at 847-49 (courts must employ “reasoned judgment” to

determine the scope of that “realm of personal liberty which the

government may not enter”).

Although the boundaries of substantive due process “are not

susceptible of expression as a simple rule,” Casey, 505 U.S. at

849, this Court has articulated two basic lines of inquiry for

deciding whether a particular right falls within the liberty provision

of the Due Process Clause. First, the Court has looked to whether

the asserted right is “deeply rooted in this Nation’s history and

tradition.” Moore v. City of East Cleveland, 431 U.S. 494, 503

(1977). Second, the Court has consulted the present conscience of

the people to determine whether the asserted right is “implicit in

the concept of ordered liberty,” such that “neither liberty nor

justice would exist if [it] were sacrificed.” Palko v. Connecticut,

302 U.S. 319, 325-26 (1937).

In this case, either line of inquiry leads to the conclusion that

a mentally competent, terminally ill person’s decision to escape

unendurable suffering by choosing to die is entitled to recognition

as a constitutionally protected liberty interest. That is, the right of

the terminally ill to find relief from excruciating pain by hastening

death bears the sanction of history. It is also entirely consistent with

other rights of fundamental personal autonomy that this Court has

found “implicit in the concept of ordered liberty” and thus

embraced by the Fourteenth Amendment’s Due Process Clause.

A. The Right of a Mentally Competent, Terminally Ill

Person to Choose an End to Suffering by Hastening an

Inevitable Death Is Deeply Rooted in this Nation’s

History and Tradition.

Petitioners and their supporting amici contend that history and

tradition support their position, but in doing so they improperly

define the practice at issue here. Although history's view of suicide

generally is subject to debate, this case presents only the narrow

question of whether a mentally competent, terminally ill person nas

a right to seek an end to intolerable suffering by hastening an

inevitable death.? Framed in these terms, the historical analysis

appears very different. In fact, there is a strong historical tradition

accepting, and often honoring, terminally ill persons who choose a

timely and dignified death in the face of unrelenting and

unendurable suffering.

This tradition traces back at least as far as the Greek and

Roman philosophers, who accepted suicide where necessary to

achieve a dignified death and to escape from a terminal and

incapacitating disease.’ For example, Plato’s Republic sanctioned

a choice to die under such circumstances: “If any man labour of an

2 The complaint in the case from Washington asserted the issue in terms of

whether the “Fourteenth Amendment protects the nghts of terminally ill adults

with no chance of recovery to make decisions about the end of their lives,

including the right to choose to hasten inevitable death with suitable physician-

prescribed drugs and thereby avoid pain and suffering.” Pet. App. Al7 n.7. The

first paragraph of the complaint describing the nature of the action brought in New

York asserted the issue in the same terms.

As the Ninth Circuit noted, following the approach of this Court's abortion

decisions, the liberty interest at stake is not the right to assistance with suicide

but, rather, the right of the terminally ill to hasten their death. If such a right

exists, then the inquiry is whether a complete ban on assistance in exercising this

liberty interest constitutes an undue burden. See Compassion In Dying v.

Washington, 79 F.3d 790, 801-02 (9th Cir. 1996).

> This Court has considered the moral tradition of the Greeks in assessing other

liberty interests. See Roe v. Wade, 410 U.S. 113, 130-32 (1973).

incurable disease, he may dispatch himself, if it be to his good.”*

Similarly, the Stoics of Rome, who believed that freedom must be

based on the dictates of the deliberative will rather than passion or

compulsion, embraced suicide as an appropriate response to a

terminal illness whose overpowering physical assaults and demands

would otherwise superimpose itself on the will and usurp the

freedom of the sufferer.°

Significantly, neither the Old nor the New Testament prohibits

suicide.® The notion of suicide as a crime was not introduced until

late in Christian doctrine, and then only as a response tc he temp-

tation that martyrdom held for the early Christians.’ Moreover,

* The Republic of Plato Book Ill, 406a-409 (Alan Bloom ed. 1968). Aristotle,

too, endorsed this possibility in his Politics. See Aristotle's Politics Wl, vi,

1278b15-30

> See Patricia A. Unz, Note, Euthanasia: A Constitutionally Prctected Peaceful

Death, 37 N.Y.L. Sch. L. Rev. 439, 441-42 (1992). Writing in this tradition,

Seneca, the great Roman orator, stated:

I will not relinquish old age if it leaves my better part intact. But if it begins

to shake my mind, if it destroys its faculties one by one, if it leaves me not

life but breath, | will depart from the putrid or tottering edifice. | will not

cacape by death from disease so long as it may be healed, and leaves my mind

unimpaired. | will not raise my hand against myself on account of pain, for

80 to die is to be conquered. But | know if | must suffer without hope of

relief, | will depart, not through fear of the pain itself, but because it prevents

all for which | would live.

Quoted in Sherman B. Nuland, How We Die 151 (1993).

* None of the four suicides recorded in the Old Testament — Samson, Saul,

Abumelech and Achitophel — is criticized. See Alfred Alvarez, “The Background”

12, in M. Babst Battin & David J. Mayo, Suicide: The Philosophical Issues

(1980). The New Testament (Matthew) records the suicide of Judas Iscariot

perfunctorily, “instead of being added to his crimes, it seems a measure of his

repentance.” Jd. “In the first years of the Church, suicide was such a neutral

subject that even the death of Jesus was regarded by Tertullian, one of the most

fiery of the carly Fathers, as a kind of suicide.” Jd.

? The Christian church taught that the world was a vale of tears, sin and

temptation, from which death would release the faithful into eternal glory.

Martyrdom afforded certain redemption, and the names of early martyrs were

celebrated and their relics worshiped. The temptation to martyrdom culminated in

the frenzy of the Donatists who, in the fourth and fifth centuries, actively pursued

death. In response, St. Augustine argued in his writings that suicide was a sin.

despite the Church’s general prohibition on suicide, certain

prominent adherents recognized the appropriateness of choosing

death as a means to end intolerable suffering for the terminally ill.

Sir Thomas More, who was later canonized by the Roman Catholic

Church, strongly supported the right of those with incurable

diseases to commit suicide, and in Utopia he depicted the ideal

treatment of the terminally ill, “full of continual pain and anguish,”

as allowing the patient to “despatch himself out of that painful life,

as out of a prison.”*

The origin of suicide as an English common law offense was

also ecclesiastical; thus, the initial penalty was merely the denial of

a Christian burial.’ During feudal times, the penalty was expanded

to include the forfeiture of goods to the suicide’s liege lord; later,

the Crown declared suicide a felony, primarily because a felon’s

goods were then forfeited directly to the King.” The common law,

however, has never treated all suicides alike. Of greatest signifi-

cance here, it was more lenient from the outset with those who

killed themselves due to an inability to endure the suffering of

disease."

The crime of suicide, along with the rest of English common

law, migrated to the American colonies, but it never took root even

in its more limited form. As the Ninth Circuit explained: “There is

no evidence that any court ever imposed a punishment for suicide

or attempted suicide under common law in post-revolutionary

America. By the time the Fourteenth Amendment was adopted in

1868, suicide was generally not punishable, and in only nine of the

These arguments, coupled with the example of the Donatists, convinced the

Church to legislate against suicide. See id. at 25-28.

* Quoted in O.R. Russell, Freedom to Die 55-56 (1975).

* See Maria T. CeloCruz, Note, Aid-In-Dying: Should We Decriminalize

Physician-Assisied Suicide and Physician-Commitied Euthanasia’, 18 Am. J.L. &

Med. 369, 373 (1992).

" See Compassion, 79 F.3d at 808-09 (citing 2 H. de Bracton (c. 1250) re-

printed in On the Laws and Customs of England 423 (S. Thorne trans., 1968).

37 states is it clear that there were statutes prohibiting assisting

suicide.” Compassion In Dying v. Washington, 79 F.3d 790, 809

(9th Cir. 1996).

Today, no American jurisdiction criminalizes suicide or

attempted suicide. And while a small majority of states currently

criminalize assistance to suicide, there is no reported American case

of a physician criminaiiy punished for helping a patient commit

suicide notwithstanding the fact that assisting the terminally ill who

wish to hasten their deaths has been a time-honored, though hidden,

practice of compassionate physicians."* For well over the past half

century, no person (physician or otherwise) has been meaningfully

punished for aiding the terminally ill to end their suffering.’’ This

reluctance to prosecute and failure to punish can only be explained

by society's abiding judgment that it has no right to insist on the

continued suffering of the terminally ill, and no right to punish

those who honor the request of the terminally ill by assisting them

in ending their agony."

2 See id. at 811 & nn.56-59; see also Note, Physician-Assisted Suicide and

the Right to Die with Assistance, 105 Harv. L. Rev. 2021, 2021 n.7 (1992).

8 “[Fjrom 1930 to 1985, not one state court decision on an actual prosecution

for suicide assistance appears in an official state reporter.” Catherine D. Shaffer,

Note, Criminal Liability for Assisted Suicide, 86 Colum. L. Rev. 348, 358 (1986).

Based on newspaper and wire service accounts, it appears that such cases either

have not been prosecuted or have resulted in acquittal or sentences of probation.

See id. In the last decade, of course, there have been several well-publicized

prosecutions. All, so far, have resulted in jury acquittals. See Jeff Stryker, A

Bedside Manner for Death and Dying, N.Y. Times, May 19, 1996, § 4, at 3.

'* Indeed, to argue that suicide by persons suffering from terminal illness is

ethically wrong, philosophers and theologians have had to resort to the concept of

God's proprietary claim over his creations. John Locke argued that suicide was

a crime because man does not have absolute dominion over himself, his being

belongs to God and he thus has no right to destroy it. “[MJen being the

workmanship of one omnipotent ... makes al] servants of one sovereign master,

sent into the world by his order and about his business — they are his property,

whose workmanship they are, made to last during his, not another's pleasure.”

John Locke, The Second Treatise of Government 9, 17, 21 (C.B. Macpherson ed.

1980). The theologian, Dietrich Bonhoeffer, has similarly stated: “It becomes

quite clear that a purely moral judgment on suicide is impossible, and indeed that

suicide has nothing to fear from an atheistic ethic. The right to suicide is nullified

There is nothing new about the desire of terminally ill patients

to end their suffering by hastening death. Developments in modern

health care have simply brought into the open a previously private

practice that society has long condoned. Until the early part of this

century, patients suffering from incurable conditions over-

whelmingly died at home due to the limitations of the health care

system. Their deaths were frequently eased by the ministrations of

alcohol and opiates.'* Indeed, opiates (including morphine), which

lead to death in excessive doses, were available without prescription

until 1914. Thus, terminally ill patients had at their disposal

throughout the Nation's early history the means of hastening death

in a certain and gentle manner when their pain became

unendurable.

With the regulation of morphine and other opiates during the

last century, this gentle quitting of a life ravaged by terminal

disease became dependent on the aid of compassionate physicians.

The evidence shows that, despite the strictures of the criminal law,

many physicians have long been willing to provide such

assistance.'* They do so in response to an undeniable reality. More

recent advances in medicine, which have dramatically increased the

life span of the terminally ill, have also stretched out the “death

span,” prolonging the agony of the end stages of terminal disease,

only by the living God.” Quoted in P. Baeclz, “Suicide: Some Theological

Reflections,” in Battin & Mayo, supra, at 75.

However deeply held such religious views may be, they cannot (without

more) be the basis for government regulation. See Casey, 505 U.S. at 850

(explaining that particular spiritual or moral views concerning a liberty “cannot

control our decision. Our obligation is to define the liberty of all, not to mandate

our own moral code.”); id. at 914 (Stevens, J., concurring in part and dissenting

in part) (“[I}n order to be legitimate, the State's interest must be secular;

consistent with the First Amendment the State may not promote a theological! or

sectarian interest.”).

'S Cran v. Director, Missouri Dept. of Health, 497 U.S. 261, 339 n.11 (1990)

(Stevens, J., dissenting).

Practice of Physician-Assisted Suicide, 44 Hastings L.J. 1290, 1297-99 (1993);

Timothy E. Quill, Death and Dignity: A Case of Individualized Decision Making,

324 New Eng. J. Med. 691, 694 (1991).

often accompanied by severe pain, physical deterioration, and

unspeakable indignities.

In sum, a review of this nation’s history and tradition in fact

provides considerable support for recognition of a constitutionally

protected liberty interest in the choice of the terminally ill to bring

an end to their suffering by hastening an inevitable death.

B. The Right of a Mentally Competent, Terminally Ill

Person to Choose an End to Suffering by Hastening an

Inevitable Death Is Implicit in the Concept of Ordered

Liberty.

The right of the terminally ill to hasten their death and escape

intolerable pain is not only grounded in history, it is also implicit

in the very concept of ordered liberty, as this Court has understood

and applied that notion in past decisions. In particular, the

combined force of Planned Parenthood of Southeastern

Pennsylvania v. Casey, 50S U.S. 833 (1992), and Cruzan v.

Director, Missouri Dept. of Health, 497 U.S. 261 (1990), leads to

the conclusion that the right of the terminally ill to quit a life

burdened by intractable pain in a gentle and dignified manner is at

the core of the liberty interests protected by the Constitution.

Cnuazan and Casey do not stand alone, however. They represent

only the latest examples of an enduring principle that has found

expression in numerous cases over the years. This Court has

repeatedly protected from state intrusion a set of decisions that go

to the very essence of what it means to be an individual in

command of a personal history and life course — decisions relating

to marriage, family relationships, conception, procreation, child

rearing, education, and the refusal or termination of life-saving

medical treatment. See Casey, 505 U.S. at 849 (“It is settled

now...that the Constitution places limits on a State’s right to

interfere with a person's most basic decisions about family and

, as well as bodily integrity.”) (citations omitted).

Review of this well-settled line of cases reveals the vital presence

of three distinct, though interrelated, components of “liberty,” each

of which strongly supports a finding of constitutional protection for

the right of the terminally ili to hasten inevitable death.

The first and perhaps pre-eminent component of “liberty”

protects the individual's interest in personal dignity and decisional

autonomy. See Moore v. City of East Cleveland, 431 U.S. 494

(1977); Roe v Wade, 410 U.S. 113 (1973); Eisenstadt v. Baird,

405 U.S. 438 (1972); Loving v. Virginia, 388 U.S. 1 (1967);

Griswold vy. Connecticut, 381 U.S. 479 (1965); Prince v.

Massachusetts, 321 U.S. 158 (1944). These cases develop the

central notion that liberty only has meaning if an individual is able

to make central decisions concerning his or her own life free from

significant governmental interference. The decision in Casey stands

as the most recent and most cogent articulation of these principles:

These matters, involving the most intimate and personal

choices a person may make in a lifetime, choices central to

personal dignity and autonomy, are central to the liberty

protected by the Fourteenth Amendment. At the heart of

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

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

Beliefs about these matters could not define the attributes of

personhood were they formed under compulsion of the State.

505 U.S. at 851.

It is beyond dispute that the decision to control the end of

one’s life when confronted with terminal illness and intolerable pain

is among the most critical and personal decisions an individual can

make. Indeed, given its profound significance to a person's

individual, familial, moral, spiritual and religious beliefs, it is

difficult to view any other life choice as striking more to the core

of personal dignity and autonomy than the decision of a competent

and suffering terminally ill patient concerning how and when to die.

Both the majority and dissents in Cruzan stressed the fundamental

nature of the choice at issue here. See Cruzan, 497 U.S. at 281

(“The choice between life and death is a deeply personal decision

of obvious and overwhelming finality.”); id. at 310-11 (Brennan,

J., dissenting) (“Dying is personal. And it is profound. For many,

the thought of an ignoble end, steeped in decay, is abhorrent. A

quiet, proud death, bodily integrity intact, is a matter of extreme

consequence.”); id. ai 343 (Stevens, J., dissenting) (“Choices about

death touch the core of liberty. Our duty, and the concomitant

freedom, to come to terms with the conditions of our own mortality

are undoubtedly ‘so rooted in the traditions and conscience of our

people as to be ranked as fundamental.’... [NJjot much may be said

with confidence about death unless it is said from faith, and that

alone is reason enough to protect the freedom to conform choices

about death to individual conscience.”) (citations omitted).

The second component of “liberty” to be found in this Court's

cases involves bodily integrity. The line of cases supporting this

component arose primarily in the context of medical procedures,

and a person’s right to direct the course of his or her own

treatment. See Washington v. Harper, 494 U.S. 210 (1990);

Winston v. Lee, 470 U.S. 753 (1985); Schmerber v. California,

384 U.S. 757 (1966); Rochin v. California, 342 U.S. 165 (1952);

Jacobson v. Massachusetts, 197 U.S. 11 (1905). Here the Cruzan

decision makes the latest and most germane statement about the role

of bodily integrity in liberty. The majority in Cruzan explained that

this Court’s precedents indicate that “a competent person has a

constitutionally protected liberty interest in refusing unwanted

medical treatment,” 497 U.S. at 278, and Justice O'Connor in

concurrence stressed that “our notions of liberty are inextricably

a ae eee

...” 497 U.S. at 287 (O'Connor, J., concurring).

Cruzan stands for the proposition that the bodily integrity

component of liberty, which encompasses the right to direct one’s

own medical treatment, is so fundamental that it is to be honored

even when the consequence of the choice is hastening an

individual's death. Accordingly, this component of liberty must

extend to persons like the patient-plaintiffs who, with their lives

ending and their bodies wracked with pain, sought the means to

preserve their dignity and control over their bodily integrity by

obtaining prescribed medication to terminate their suffering."”

" Though the United States finds that “Cruzan supports the conclusion that a

liberty interest is at stake in this case,” Govt. Br. in Glucksberg at 15, it also

suggests that this case does not involve Cruzan's interest in “avoiding invasions

of bodily integrity.” Jd. at 16. Such a view misses the reality of those who seck

to exercise the nght at suc here Like the patient-plaintiffs in these cases, dying

patients secking to hasten death are typically in excruciating pain and often

The third and final component of “liberty” supporting the

constitutional right of terminally ill patients to choose a peaceful

death is the right to avoid intolerable suffering. As the United

States highlights, see Govt. Br. in Glucksberg at 14, a liberty

interest is surely implicated if the State itself inflicts severe pain

and suffering. See Ingraham v. Wright, 430 U.S. 651, 674 (1977);

see also Hudson v. McMillian, 503 U.S. 1, 9-10 (1992). A liberty

interest is also implicated when the state interferes with an

individual's ability to relieve his or her pain, as the United States

again appropriately recognizes. See Govt. Br. in Glucksberg at 14-

15; cf. Estelle v. Gamble, 429 U.S. 97, 104 (1976). Casey

acknowledges that the ability to seek relief from pain is a

component of the “liberty” protected under the Due Process Clause

— especially when the pain at issue is itself integrally bound up

with a decision which implicates the dignity and autonomy interests

in directing one’s own life course that are also the province of the

Due Process Clause:

The mother who carries a child to full term is subject to

anxieties, to physical constraints, to pain that only she must

to insist, without more, upon its own vision of the woman's

role.... The destiny of the woman must be shaped to a large

physically incapacitated; frequently their entire bodily existence is conscnpted by

the demands and relentless assaults of an incurable disease To suggest that such

persons’ “bodily integrity” is unaffected if they are denied the opportunity to seek

medication to bring they suffering to an end — and are thereby forced to continue

an existence which they view as a torment — evinces a remarkably hollow con-

ception of the right to bodily integrity. Of course, this Court's precedents

encompass a much fuller conception of bodily integrity. As Casey made clear

when it held that denial of access to the medical procedure of abortion touches

“upon the very bodily integrity of the pregnant woman,” 505 U.S. at 896, this

Court has recognized an mterference with a liberty mierest whenever persons have

particular courses of medica! treatment thrust upo. them or denied to them

contrary to their interests or consent. Sec, ¢.g., Washington, 494 U.S. at 229,

Jacobson, 197 U.S. at 24-30, see also Vitek v. Jones, 445 U.S. 480, 494 (1980);

Parham v. J.R., 442 U.S. 584, 600 (1979).

extent on her own conception of her spiritual imperatives and

her place in society.

505 U.S. at 852.

The same principle applies where a state prohibition relegates

competent, terminally ill individuals to continue to suffer acute pain

without the option of a gentle, hastened death. Like the pregnant

woman's decision, the decision of a terminally ill individual to quit

life in the face of unendurable pain and certain death is too

intimate, too personal, and too central to the totality and meaning

of that person’s life for the State to impose its own philosophical

and moral imperatives upon that decision. Indeed, the personal

stories of the patient-plaintiffs plainly illustrate the extent of the

suffering at stake in these cases." The United States properly

recognizes this “significant liberty interest” in its brief, noting that

“it persists even at the point at which avoiding severe pain and

suffering coalesces with ending life.” Govt. Br. in Glucksberg at

16. This view resonates fully with the decision in Cruzan, which

™ Washington notes that respondents and their supporting amici placed before

the Courts of Appeals numerous “anecdotes” of the terminally ill who wished to

hasten their death and avoid painful, undignified and inhumane endings to their

lives. The State of Washington urges that this Court not make constitutional

decisions based on “anecdotes.” See Washington Br. at 18. But these personal

stores, though brief and obviously inadequate to portray essentially indescribable

human suffering, are meant to help the Court to conjure the unimaginable pain and

suffering experienced by those who might avail themselves of the right urged here.

As the United States acknowledges, see Govt. Br. in Glucksberg at 18 & n.1, an

irreducible core of terminally ull patients (including an estimated 10% of all cancer

patients) cannot obtain relief through palliative treatment but are trapped in

physical agony. In some cases, pain cannot be controlled even with full and

appropriately timed doses of narcotics; in other cases, the toxic effects of the

palliative agents may be intolerable. See Howard Brody, Assisted Death — A

Compassionate Response to Medical Failure, 327 New Eng. J}. Med. 1385 (1992).

Moreover, the invocation of the capabilities of modern palliative medicine ignores

the subjective nature of suffering, the diminished fortitude in the face of suffering

when all hope of recovery is gone, the practical reality that pain can often only

be allayed, if at all, at the cost of mental alertness; and the loss of dignity that

accompanies physical deterioration. In these circumstances (the “anecdotes” that

respondents and their amici place before the Court), compassion and the

Constitution dictate that these terminally ill patients not be denied thew wish for

a hastened and gentle death.

teaches that a liberty interest persists even to the point where an

individual decides to hasten his or her death through the refusal of

life-sustaining treatment.'°

These three components of “liberty,” all recognized by this

Court as hallmarks of “the concept of ordered liberty,” forge a

strong base of constitutional support protecting the right of a

competent, terminally ill person to choose to end suffering by

gently hastening death. To deny constitutional protection for this

right would undermine concepts of liberty and autonomy previously

recognized as sacrosanct. “Making someone die in a way that

others approve, but he believes a horrifying contradiction of his

life, is a devastating, odious form of tyranny.”” The right to define

the limits of one’s endurance in the face of terminal illness and to

embrace a swifter, more gentle death, should be recognized as an

essential component of liberty under the Due Process Clause.

A BLANKET PROHIBITION AGAINST AID

TO SUICIDE UNDULY BURDENS THE RIGHT

OF THE TERMINALLY ILL TO MAKE

RATIONAL END OF LIFE DECISIONS

If this Court determines that the right of the terminally ill to

escape intolerable pain and suffering through hastening death is a

liberty interest protected by the Fourteenth Amendment, there can

be little doubt that the laws at issue here “operate as a substantial

obstacle” to the exercise of that constitutionally protected personal

liberty interest. Casey, 505 U.S. at 895.

Amici acknowledge that the states have a significant interest in

the preservation of life that permits them to regulate, even quite

extensively, the exercise of the right of the terminally ill to ~Yoose

™

* In Cran, this Court noted that the “logic of [prior] cases” would extend the

liberty interest in refusing medical treatment to refusing “the forced administration

of life-sustaining medica! treatment, and even of artificially delivered food and

water essential to life.” 497 U.S. at 279.

® Ronald Dworkin, Life's Dominion: An Argument About Abortion, Euthanasia,

and Individual Freedom 217 (1993)

the time and manner of their death. Indeed, such regulation is

undoubtedly appropriate to ensure that the right at issue here is not

misused. This case, however, does not involve regulation, but

prohibition. And, in this context, it is undeniable that an absolute

ban on obtaining assistance from a physician unduly burdens the

right of the terminally ill to escape pain by hastening death. Indeed,

for many terminally ill patients, it precludes it entirely.

Furthermore, there are less restrictive alternatives available that

would in fact better serve the interests claimed by the states in this

case.”

A. A Blanket Ban on Assistance to Suicide Is a Substantial

Obstacle to the Right of the Terminally Ill to End Their

Suffering.

A state’s blanket prohibition against aid in dying unduly

burdens the right of terminally ill individuals to end their suffering

and hasten their death, preventing significant numbers of terminally

ill from achieving the release from suffering that they desire and

relegating still others to unacceptable options. Along with improv-

ing and extending life, the advances of modern medicine have

transformed radically the social circumstances of death. Whereas

only a generation ago the vast majority of persons died at home,

now approximately 80% of individuals die in hospitals and long-

term care institutions.” It is, as a practical matter, impossible for

2 This Court has not always employed a single test when weighing the strength

of the state's asserted justification for abridging a fundamental liberty interest. In

Casey, the Court adopted an “undue burden” test that focussed on whether the

challenged regulation placed a “substantial obstacle” in the path of a woman

secking a pre-viability abortion. In other contexts, this Court has emphasized the

need for narrow tailoring. See, ¢.g., City of East Cleveland, 431 US. at 499.

Under either formulation, a total ban on physician-assisted suicide cannot be

upheld. As explained below, it clearly represents a “substantial obstacle” to

terminally ill individuals who wish to end their suffering and it is not narrowly

tailored to achieve the state's asserted interests.

2 See Cran, 497 U.S. at 302 (Brennan, J., dissenting); id. at 339-40 (Stevens,

J., dissenting) (“People are less likely to die at home, and more likely to die in

relatively public places, such as hospitals or nursing homes. Ultimate questions

that might once have been dealt with in intimacy by a family and its physician

have now become the concern of institutions.”).

the terminally iil who are institutionalized to obtain release from

suffering unassisted; without aid, they are unable to obtain the

means for a swifter death. Moreover, a state’s blanket prohibition

against aid in dying presents an absolute obstacle to those who do

not wish to quit their lives until their terminal illnesses progress to

the point at which they lack the very strength to accomplish suicide

unassisted. One consequence is particularly intolerable. Faced with

increasing weakness and loss of autonomy in the final stages of an

illness, terminally ill patients who have chosen to avoid lengthy and

excruciating deaths are frequently forced to end their lives

prematurely for fear that further loss of strength or intense medical

supervision effectively will deprive them of their choice.

Furthermore, such terminally ill patients often are driven to

end their lives by violent means and entirely alone. Ironically, such

violent means are often legally accessible, whereas the medical

means that might allow the patient to quit life gently are now

inaccessible in the absence of a physician willing to transgress the

law. The fear of implicating one’s friends or family in crime,

moreover, often induces the terminally ill to carry out their resolve

secretly and alone. The trauma is then magnified for friends and

family who must deal not only with the death, but the gruesome

means employed and the fact that their loved one was forced to

meet death unsupported and alone.”

Other terminally ill individuals determined to end their

suffering frequently turn for help to friends or family members,

who must then choose between love and compassion or the dictates

of the law.™ Another cruelty caused by the ban on assistance is that

® The ban on physician assistance may not only cause terminally ill individuals

to commit suicide prematurely or preclude a gentie death or one in the company

of friends and family, but it also may frustrate the very desire for certain death

when self-inflicted attempts fail, thereby causing additional and gratuitous

suffering to the tormented patient. See Quill, supra note 16, at 117-20.

* See, ¢.g., K. Frederickson, Torn Mother: I Helped Her Pass On, Oregon

Bulletin, May 16, 1994, at Al (giving account of mother's explanation, after

expiration of statute of limitations, of how she finally acceded io daughter's plea

to assist her suicide after months of watching her wasting from bone cancer in too

much pain to endure even her mother's touch).

non-physician assisted suicides are amateurish affairs, always

clandestine and often bungled. One Canadian study of “back-alley

euthanasia” among the Vancouver AIDS population found that one-

half of assisted suicides were botched, perversely increasing —

rather than alleviating — suffering.”

B. The States’ Asserted Interests Do Not Justify an

Absolute Ban on Physician Aid in Dying for the

Terminally Il.

In opposition to th’s right, Washington and New York invoke

interests in preserving human life, precluding undue influence or

mistake, safeguarding the integrity of the medical profession and a

concern over the “slippery-slope” — i.e., that line-drawing in this

area will prove impossible. These interests and concerns, however

legitimate, do not justify an absolute ban on physician aid in dying

for terminally ill persons and should not outweigh the recognized

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

suffering.

1. Interest in Preserving Each Citizen's Life

First, as this Court has determined, a state’s interest in the

preservation of every citizen's life, such as that asserted by New

York and Washington here, abstracted from the value that a

particular person may place on the continuation of that life, cannot

outweigh a terminally ill individual's choice to end suffering and

quit a life burdened by intractable pain and irreversible disinte-

gration. See Casey, 505 U.S. at 857 (“[A] State’s interest in the

® See Clyde H. Farnsworth, Vancouver AIDS Suicides Botched, N.Y. Times,

June 14, 1994, at C12. For example,

In five cases, victims were unsuccessfully suffocated. In one case, the people

who assisted in the suicide resorted to slitting the victum's wrists with a razor

blade and in another case to shooting him. Two were injected with pure

heroin. Many of the acts of cuthanasia took several hours or longer to be

completed. In one case it took four days.

id.; see also Gina Kolata, AIDS Patients Seek Solace in Suicide But Many Risk

Added Pain in Failure, N.Y. Times, June 14, 1994, at Cl (reporting on man who,

in trying to bring on a gentle death by smothering his lover with pillow,

asphyxiated him only enough to destroy most of his brain function).

protection of life falls short of justifying any plenary override of

individual liberty claims.”).*

Second, the pitiless process by which many terminally ill

persons die — the unremitting pain, the erosion of privacy and

dignity, the loss of control over basic bodily functions — leads

some to conclude that the burden of their corporeal existence

degrades the very humanity it was meant to serve. In choosing to

end their suffering, the terminally ill do not repudiate an interest in

life but seek to affirm a meaningful life with a dignified death.”

In these circumstances, a state may not insist that the

terminally ill endure the unendurable in order to promote the state’s

abstract interest in the preservation of life. To do so is to appro-

priate an individual’s existence, and to prolong cruel and unusual

torment, for the purpose of proselytizing the state’s preferred

philosophical view of life. This a state may not constitutionally

do.”

** In Cruzan, the majority stated :

we think a State may properly decline to make judgments about the “quality”

of life that a particular individual may enjoy, and simply assert an unqualified

interest in the preservation of human life to be weighed against the constitu-

tionally protected interests of the individual.

497 U.S. at 282. Indeed, a state has no other choice. More specifically, a state

cannot make determinations about the worth or quality of an individual's life and

then rely on that determination as a basis for making life or death decisions. For

the termunally ill, the meaning of life and the impact of physical and psychological!

agony represent the most persona! of judgments that the state may not usurp.

” As Juste Stevens noted, an interest in life “includes an interest in how [one]

will be thought of after ... death by those whose opinions mattered” during life.

“How [one] dies will affect how that life is remembered.” Cruzan, 497 U.S. at

344 (Stevens, J., dissenting). Those enduring a life racked with pain and utter

helplessness may reasonably reject the prospect of a long vigil where family and

friends loyally and lovingly witness their disintegration. The terminally ill

reasonably may assert an interest in being remembered for how they lived rather

than the excruciating, relentless and lengthy process by which they died.

* A sate may not even use a person's car as a moving billboard to proselytize

its views on life's meaning by insisting that the state's motto appear on citizens’

license plates. See Wooley v. Maynard, 430 U.S. 705 (1977). In the abortion

context, a stale may not insist that a woman carry a not-yet-viable life to term to

affirm the state's view of women's role or its philosophic view of when life

2. Preventing Undue Influence or Mistake

Washington and New York also rely on their interest in

protecting vulnerable citizens. They argue that the right at issue, if

recognized, would be subject to abuse and mistake — that requests

for aid in dying would be mistakenly granted to those not

terminally ill (because incorrectly diagnosed) or to those whose

request was not truly voluntary (due to undiagnosed depression,

lack of capacity, inadequately treated pain, or undue influence from

family or physician).

These concerns, however, are not unique to the present

situation. The risk of abuse or mistake exists in many medical

contexts, including the end-of-life decisions already condoned by

the State. These risks are routinely and appropriately dealt with

through regulation. For example, only an informed competent adult

may consent to an order not to resuscitate. See, e.g., N.Y. Pub.

Health Law §§ 2960 et seg. (McKinney 1993). Similarly, only a

competent principal may appoint a health care agent (who may be

a family member) who has the power to decide not to resuscitate or

to terminate life support for the principal in the event of incapacity.

See, e.g., N.Y. Pub. Health Law § 2981 (McKinney 1993).

Indeed, under applicable state statutes, a finding of competence is

a necessary precondition to the execution of health care directives.”

If the law permits life-ending actions to be taken on the basis

of competence in other medical contexts, there is no reason to

claim that such a determination is impossible in this setting.

Moreover, the recognition of the right to physician aid-in-dying

would better address some of the state’s concerns here. Whereas

the current legal regime may lead the terminally ill to hide their

wish for suicide from their doctor for fear that needed pain

medication may be withheld, recognition of the right to physician

assistance in hastening death would encourage frank discussion

between the terminally ill considering suicide and their treating

begins. See Casey, 505 U.S. at 851. Equally, a state may not promote its view

of the sanctity of life by insisting that a terminally ill individual bear unrelievec

suffering rather than hasten death.

® See generally Compassion, 79 F.3d at 818 (citing numerous statutes).

physician. Such discussions necessarily would raise the issue of the

patient’s mental state and the pain being experienced, and lead to

the provision of treatment for depression, where warranted, or for

pain, where all available methods have not been tried. Furthermore,

where family or friends have improperly planted the thought of

suicide, involvement of an objective physician would be salutary.

With respect to the concern over mistaken diagnosis (as with

the previous concerns), safeguards short of an absolute ban can be

crafted to minimize the likelihood of misdiagnosis to a very small

order of probability.” Furthermore, the risk is equally present in

other end-of-life decisions already condoned by the state such as the

withdrawal or refusal of life-support by the terminally ill.”

Furthermore, the state’s concerns regarding mistake in the

exercise of the right ignore the consequences of a prophylactic

outright ban on the terminally ill who are unquestionably competent

and unquestionably in the end-stage of terminal disease. These

terminally ill would be left acutely to suffer — having been

foreclosed, as the United States acknowledges, from the “one

® Model regulations have provided that a patient secking physician assistance

in hastening death receive confirmation by at least two physicians (or an entire

committee of physicians) that they are in the terminal phase of their illness before

such a request will be honored. Sce infra p. 22 & n.34.

*! The United States argues that an incorrect diagnosis in the case of the

withdrawal! of life support does not, as it would here, result in death. See Govt.

Br. in Quill at 14. In support, the United States points to Karen Ann Quinlan, who

lived for years after her life support was disconnected. jd. But the Government's

argument conflates two possibilities of misdiagnosis at stake in a terminally ill

patient's decision to withdraw life-support and hasten death: dependence on life-

support (not at issue in this case) and the terminal phase of an irreversible discase

(which is at issue in this case). Withdrawing life-support does not lead to death

where there has been a misdiagnosis of dependence on life support. On the other

hand, where the misdiagnosis involves the reversibility of the discase (i.¢.,

whether it is terminal) — the only diagnosis at issue here — a misdiagnosis leading

to withdrawal of life support will lead to a death. In such cases, a person whose

condition might have improved if retained on life support, is removed from life

support and allowed to die. Despite such risks (which can be and are minimized

through requirements of diagnostic confirmation), the right to hasten death through

directing the discontinuation of life support has been vouchsafed to the terminally

il.

humane and certain route of escape from pain and suffering.” Govt.

Br. in Quill at 15. These individuals, whose lives have already been

so horribly compromised, cannot be forced to such a sacrifice.

Moreover, the current unregulated practice of assisted suicide

by the terminally ill is clearly more subject to the abuse and

mistake that concern petitioners and their amici. Existing back-alley

methods provide no safeguards at all and thus no assurance that

diagnosis will be accurate, that depression will be identified, and

that undue influence has not been exercised. Yet, if the right

claimed here is not recognized, certain terminally ill patients who

are incapable of enduring further suffering will resort to self-help

or the back-alley methods currently available with all of their

significant risks.

Accordingly, amici urge recognition of the right claimed by

respondents. Amici also support the use of legislative safeguards to

ensure that all requests of the terminally ili for aid in dying are the

product of thoughtful and informed self-determination.” Petitioners

have offered no persuasive justification to support the need for a

total prohibition.”

® The recommendation of the New York State Task Force, relied on heavily by

petitioners and their amici, is instructive in this context. In its 1994 report, When

Death Is Sought; Assisted Suicide and Euthanasia in the Medical Context, the New

York State Task Force on Life and the Law unanimously recommended that New

York's statutory ban on assisting suicide be retained due to the risk of abuse and

mistake if physician-assisted suicide for the terminally ill was allowed. In support

of its recommendation, the New York State Task Force, like New York and

Washington herein, focused on requests that were or might be made due to

untreated pain or depression or undue influence. But when confronted with the

specific issue raised by these cases — voluntary requests from the competent and

suffering terminally ill] — some Task Force members endorsed assisted suicide as

a means of showing respect for the autonomy, and compassion for the suffering,

of these patients. They preferred, however, that such patients obtain medical help

clandestinely from courageous doctors willing to violate the law. See id. at 141.

Thus, in the circumstances directly and solely at issue here, some members of the

Task Force urged that the New York laws be disobeyed.

*® The briefs of petitioners and their supporting amici rely on anecdotes (and

selective studies — which are not uncontradicted — about experiences in another

nation) to argue that regulation could not effectively safeguard the nght claimed

here. Notably, these anecdotes do not involve the exercise of the right to the

Indeed, several model statutes for physician assistance to the

terminally ill already exist that incorporate procedural safeguards

to screen out inappropriate cases, including requirements of:

witnesses to ensure voluntariness (neither related to the patient nor

involved in his or her treatment); reasonable waiting periods to

preclude rash decisions; confirmation by a second physician of the

terminal diagnosis and that the patient has been receiving proper

palliative care; psychological examination to ensure that the patient

is not suffering from a momentary or treatable depression; and

reporting procedures.™

3. Implicating Doctors in Killing and Slippery-Slope

Arguments

Petitioners and their amici also contend that affirming the

decisions below will lead to the erosion of society’s confidence in

the medical profession by implicating physicians in intentional

killings. But, as the Second Circuit correctly noted, the physician

assistance sought by patient-plaintiffs in this case, “the writing of

a prescription to hasten death ..., involves a far less active role for

the physician than is required in bringing about death through” the

withdrawal of life support. Quill v. Vacco, 80 F.3d 716, 729 (2d

Cir. 1996). Accordingly, the right the patient-plaintiffs wished to

exercise in this case implicates doctors in intentionally killing, and

risks tarnishing their image, no more than does the currently

refusal or withdrawal of life-sustaining treatment which has been effectively

regulated. Instead, petitioners and their amici rely largely on hypothesized

scenarios and anecdotes relating to the clandestine exercise of physician aid in

dying, which at presen’ is illegal and entirely unregulated. Neither these, nor the

disputed experience of another nation, provide a sufficient basis to argue against

the right urged here.

™ See Oregon's Death with Dignity Act, Or. Rev. Stat. §§ 127.800-127.995

(1995), Michigan's Model Statue Supporting Aid-in Dying, appended to the Final

Report of the Michigan Commission on Death and Dying (1994); New York,

Senate Bill No. 7986 (May 3, 1994) entitled “Death With Dignity,” sponsored by

New York State Senators Galiber, Leichter, Markowitz, Smith and Waldon;

Washington Senate Bill 5596 (Jan. 27, 1995) entitled “Terminally Ill Patient Act

of 1995.” Of course, the constitutionality of particular restrictions is not before

the Court since the two state statutes in this case are both total bans.

sanctioned practice of removing life-sustaining medical treatment.

See Compassion, 79 F.3d at 828 (“Given the similarity between

what doctors are now permitted to do and what the plaintiffs assert

they should be permitted to do, we see no risk at all to the integrity

of the profession.”). Furthermore, since safeguarding of the right

at issue here will permit and encourage candid discussions of all

available options between the terminally ill and their physicians,

instead of “criminaliz|ing] the provision of medical assistance to

patients in need,” id. at 827, recognizing the right of the terminally

ill to obtain the relief they seek from their doctors would foster

rather than erode public confidence in the medical profession.

The other argument raised by petitioners and their supporting

amici is that recognition of the right to physician aid in dying urged

here would somehow be uncontainable. These sorts of slippery-

slope arguments can be made in opposition to any constitutional

right (and have been leveled against many recently recognized

rights, including the right to terminate life-sustaining treatment).

Recognition of any right creates the possibility of its abuse; but

petitioners do not raise any cogent concerns that could not be

addressed in ways that still allow the right to be exercised.

Finally, Petitioners point to the difficulty in defining the

category of the “terminally ill.” In fact, this term has been used

(and defined) in “living will” statutes in effect in 40 states. See

Compassion, 79 F.3d at 818 & nn.77-78 (listing state statutes).

While the term is not free from difficulty, it has proved workable

and is not problematically vague.”

* Petitioners point further to the difficulty in distinguishing between «

physician's prescription of lethal medication to be self-administered by 4

terminally il) pauent and a physicuan’s administration of that medication where the

terminally ill individual is unable to do so. Amici acknowledge that some

terminally ill patients who voluntarily request a hastened and gentle death may,

due to the devastating progress of their disease, be unable pinysically to ingest

medication without assistance The question whether the physician's administration

of the medication could be constitutionally prohibited in such a case is not

presently before the Court. Amici, however, agree with the Ninth Circuit that the

crucual question is whether the request is thoughtful and voluntary and, if so, the

terminally il] patient who is physically unable to administer the medication that

would release him from his agonies cannot, consistent with the Constitution, be

BECAUSE TERMINALLY ILL PATIENTS ON LIFE

SUPPORT HAVE THE RIGHT TO MEDICAL

ASSISTANCE IN HASTENING DEATH, DENYING

TERMINALLY ILL PATIENTS NOT ON LIFE SUPPORT

MEDICAL ASS:STANCE IN HASTENING DEATH

VIOLATES THE EQU..L PROTECTION CLAUSE OF THE

FOURTEENTH AMENDMENT

The arguments supporting the right urged here are further

buttressed by the fact that New York, Washington and most other

states have recognized the right of a competent, terminally ill

patient to choose to end a dehumanizing process of dying by

hastening inevitable death. Indeed, they have recognized the right

SE ea ak ak here Most states,

The Equal Protection Clause mandates that “all persons

similarly circumstanced shall be treated alike.” Royster Guano Co.

v. Virginia, 252 U.S. 412, 415 (1920). The Second Circuit recog-

nized that, with respect to the decision to end intolerable suffering

by hastening an inevitable death, all terminally ill persons are

prevented from obtaining the necessary aid. See Compassion, 79 F.3d at 831-32.

The fact that the right urged here may one day properly be extended to include

such a case is no cause for alarm. kt bears no relation to the entirely speculative,

ig ' ined by . a . _ : that the right

urged here — a rght of the individual against the state for release from the

unendurable ravages of termina! disease — somehow will metamorphosize into

the ability of society to act against the individual and do away with those whose

lives are no longer valued. Such dark fantasies should be disregarded.

similarly situated, whether or not on life support. But, by denying

only those not on life support access to a medical means to achieve

their desired end, “New York law does not treat equally all

competent persons who are in the final stages of fatal illness and

wish to hasten their deaths.” Quill v. Vacco, 80 F.3d 716, 727 (2d

Cir. 1996). Accordingly, New York’s laws (and their Washington

equivalents) which prohibit only some terminally ill from obtaining

an escape from their pain “are violative of the Equal Protection

Clause.” Jd.

Petitioners argue that there is a constitutionally significant

distinction between the withdrawal of medical treatment (even life-

sustaining medical treatment) and the release from suffering sought

by the respondents in this case. In fact, as the United States

essentially acknowledges, see Govt. Br. in Quill at 10, 13, and as

the Second Circuit found, see Quill, 80 F.3d at 729-30, there is no

material distinction between the patient's choice in either case or

between the physician's involvement in accomplishing that choice.

In both cases the patient is making the decision to curtail

weeks or months of suffering in the face of further devastation and

certain death. Terminally ill patients who request the discontinuance

of life-sustaining treatment, like the terminally ill patient-plaintiffs

who by this action sought to hasten death by consuming drugs

prescribed for this purpose, have made a conscious decision to die

and seek medical assistance to accomplish their desire.“ The

medical assistance required to implement this choice is far greater

(both in terms of quantity of activity and causal nexus to death)

than the prescription of medication to be self-administered by the

terminally ill. In the case of the withdrawal of life support, the

physician must remove the medical machinery sustaining life,

monitor the resultant accelerated dying process and administer

morphine or barbiturates to ease the pain that would otherwise

* See Quill, 80 F.3d at 729 (citing Cruzan, 497 U.S. at 296-97 (Scalia, J.,

concurring)).

attend such a death. These medications typically must be

administered in doses that in fact precipitate an even earlier death .”’

Thus the Talmudic distinction petitioners press between the

allegedly “natural” death accomplished by withdrawing life-

sustaining treatment and the allegedly “unnatural” deaths sought

here, is not sustainable. In both cases the motive force is the

patient's intention to hasten impending and certain death and in

both cases the physician provides the medical assistance to ensure

that the patient’s desire can be accomplished in a certain, gentle and

medically supervised manner. As the Second Circuit rightly

concluded in Quill, the withdrawal of life-sustaining treatment by

the physician is not “passive” assistance to that desire nor does it

allow for a “natural” death. See 80 F.3d at 729.

Petitioners’ specious distinction between, and undue emphasis

upon, natural and unnatural deaths has warped treatment decisions

made by compassionate doctors wishing to respond to requests from

terminally ill patients who are not on respirators or receiving

the limit of their endurance. In such cases, physicians sometimes

have aided these patients by contriving a death that mimics those

regarded by petitioners as “natural.” This practice, sometimes

referred to as terminal sedation, involves medicating the patient into

a sleep-like state until the patient dies of starvation or dehydration,

days or perhaps weeks later. See AMA Br. in Glucksberg at 10;

Resp. Br. in Quill at section II1.B.

” The Second Circuit's discussion of this point bears repeating:

[T}he writing of « prescription to hasten death, after consultation with «

patient, involves a far less active role for the physician than is required in

bringing about death through asphyxiation, starvation and/or dehydration.

Wahdrawal of life support requires physicians or those acting al their direction

physically to remove equipment and, often, to administer palliative drvgs

which may themscives contribute to death. The ending of life by these means

1s nothing more nor less than assisted suicide.

Quill, 80 F.3d at 729.

Indeed, as part of palliative care for the terminally ill, doctors

routinely have supplied the causal agent of patients’ deaths under

the doctrine of “double effect.” Where the terminally ill suffer

from intractable pain in the final stages of disease, doctors

sometimes will choose to administer an intravenous morphine drip

that eases suffering by inducing a sleep-like state and also hastens

death by suppressing respiration; as with terminal sedation, death

may be precipitated in a matter of days. Medical ethicists and the

Catholic Church justify action such as terminal sedation and

morphine drips on the ground of the “double effect,” reasoning that

the physician’s operative intent is to relieve pain, while death is

regarded as a foreseen but unintended consequence.

But the patients at issue in these cases also seek a release from

suffering, and also believe that such relief can only be accom-

plished by their deaths. There is no constitutionally cognizable

reason that the prescription of medication to eliminate suffering and

achieve a peaceful death can only be legally permissible where

death is accomplished gradually (by starvation, dehydration or

asphyxiation) while the patient is put into a twilight zone that can

last days or weeks. This option, where one is subject to the

unknown sensory experiences and state of consciousness that might

attend such a drug induced coma, while one’s loved ones stand

vigil for days or weeks, may appear a monstrous and horrifying

prospect to the terminally ill who wish for a certain and gentle

death.

M the —_ tat eatutten ond |

morphine drip places the decision in the hands of doctors rather

than patients.” Amici urge that the right pressed here — which is

also meant to relieve suffering by hastening inevitable death —

better serves the needs and autonomy interests of terminally ill

patients.

The distinction urged by petitioners between the competent

terminally ill who wish tc die and those who wish to terminate life-

sustaining treatment (or who are willing to undergo terminal

sedation) certainly cannot survive the heightened scrutiny required

when fundamental rights are at stake and, as the Second Circuit

found, its very rationality is difficult to ascertain.” In short,

because a complete ban on the prescription of medication to

competent terminally ill patients who wish to hasten death does not

serve the state’s expressed interest as well as would appropriately

drawn regulations, it is violative of the Equal Protection Clause.

™ Interestingly, the United States suggests that this Court need not be especially

Vigilant in reviewing the stale's line drawing here because “[tjermina! illness does

not single out any discrete or insular minority; it potentially affects all

Americans.” Govt. Br. in Glucksberg at 31-32. On this basis, the United States

asserts thal “there is every reason to believe that the state legislatures will address

the competing interests in an impartial and unbiased way,” and also contends that

“there is no indication that the political processes are malfunctioning.” id. at 31

& n.3. This argument fails, of course, if a fundamental liberty interest is at stake

because, im that circumstance, heightened scrutiny is required regardiess of

whether a discrete and insular majority is involved.

Furthermore, as a matter of practice, it is difficult to put faith in the political

processes which have traditionally not acted to safeguard the right of the

terminally ull to escape pain through a gentle, hastened death while prosecutors,

terminally ill exercise this right. See supra p. 7 & nn.12-13. This disjunction

between the law on the books and the law in enforcement bespeaks a mal-

functioning of the political process.

CONCLUSION

For the foregoing reasons, Amici respectfully request that the

judgments of the Courts of Appeals be affirmed and that the New

York and Washington statutes prohibiting physician-assisted suicide

be declared unconstitutional as applied to mentally competent,

terminally ill perso is requesting such aid to escape unendurable

suffering.

Respectfully submitted,

KAREN E. BOXX CAMERON CLARK

KELLER ROHRBACK (Counsel of Record)

1201 Third Ave., Suite 3200 CLAUDIA L. HAMMERMAN

Seattle, WA 98101 DOUGLAS A. BERMAN*

(206) 623-1900 1285 Avenue of the Americas

New York, NY 10019

Of Counsel: (212) 373-3000

STEVEN R. SHAPIRO

AMERICAN CIVIL LIBERTIES

UNION FOUNDATION

132 West 43rd Street

New York, NY 10036 * Awaiting admission to the Bar of the

(212) 944-9800 State of New York

Dated: December 10, 1996

Appendix

The American Civil Liberties Union (“ACLU”) is a

nationwide, nonprofit, nonpartisan organization with nearly 300,000

members dedicated to preserving the principles of liberty and

equality embodied in the Constitution. Since its founding in 1920,

the ACLU has participated in numerous cases before this Court. Of

particular note here, the ACLU appeared as counsel in both

Planned Parenthood of Southeastern Pennsylvania v. Casey, 112 S.

Ct. 2790 (1992), and Cruzan v. Director, Missouri Dept. of Health,

497 U.S. 261 (1990). The ACLU of Washington is a state affiliate

of the ACLU and appeared as amicus curiae before the Ninth

Circuit in Compassion In Dying v. Washington.

The National Gray Panthers Project Fund is a civil liberties

advocacy project concerned with social justice for the aging. As

advocates for the aging, the Gray Panthers and their state affiliates

of Washington and New York join in this case, as a friend of the

court, to highlight the right of individuals to make choices about

the quality of their lives.

The Japanese American Citizens League (“JACL”) is a

national civil rights organization founded in 1930, committed to

strive to secure justice and equal opportunities for all Americans of

Japanese ancestry as well as for all Americans, regardless of race,

2-A

government intrusion. Accordingly, the group defends, among

other things, the right of terminally ill persons to choose the time

and manner of their death.

The Hemlock Society USA was formed in 1980 to achieve the

legalization of physician aid in dying for terminally ill, mentally

competent adults. It has 25,000 members in 80 chapters and

community groups throughout the country. The New York State

and Washington State affiliates join the national organization in

Supporting the right of dying persons to work with their physicians

so that the voluntary request for a hastened death may ve part of

the continuum of care available to the terminally ill.

The Euthanasia Research & Guidance Organization

(“ERGO!”), a non-profit educational corporation organized under

the laws of the State of Oregon, was founded in 1993 to lay the

groundwork for the compassionate and just implementation of a

mentally competent terminally ill adult’s decision to hasten death

when the law permits it in America. ERGO promotes safeguards

and guidelines on legal, medical, and ethical issues so that

physician aid in dying will be put into careful practice. Its goal is

to educate and prepare individuals and institztions, ensuring a

smooth transition when the change in law occurs. ERGO supports

the respondents’ position that a mentally competent terminally ill

adult has the right to hasten inevitable death with the assistance of

a physician.

AIDS Action Council is the Washington, D.C. representative

of over 1,000 community-based organizations and the people living

with HIV/AIDS they serve across the nation. As the only national

organization devoted entirely to federal advocacy on behalf of

people living with HIV/AIDS, AIDS Action works to ensure that

effective national initiatives for prevention, care, and research are

developed and implemented which are responsive to and respectful

of the needs of all people living with or at risk of HIV/AIDS. In

that regard, AIDS Action supports policies that empower people

living with AIDS to exercise their fundamental right to make

individual decisions about how they live with this disease, including

their right to choose in a dignified and humane way the manner and

time of their death with the assistance of their physicians.

3-A

The Northwest AIDS Foundation is the largest private, non-

profit HIV/AIDS service and education organization in Washington

state. The Foundation is dedicated to ensuring and maintaining the

highest quality of life for persons living with HIV/AIDS,

preventing the spread of HIV and advocating for all those whose

lives have been affected by HIV/AIDS. Knowing the pain their

clients experience as their illness becomes terminal, incapacitating,

and untreatable, the Foundation supports the right of all persons

with a terminal illness to decide for themselves when to end their

own lives and for those individuals to seek assistance in doing so

if they so wish.

The Seattle AIDS Support Groups (“S.A.S.G.”) mission is

ide emotional support in a setting (via support groups

ae center) to persons living with HIV/AIDS and to their

families, friends, and loved ones. The group’s commitment is to

create a safe and supportive environment fostering dignity, fullness

of life and personal empowerment for persons with AIDS. By

fostering dignity and personal empowerment, S.A.S.G. seeks to

validate each individual’s own choices about living and dying with

this disease. The group believes that the option to hasten inevitable

death should be a right for all terminally ill persons who elect to

make that choice.

Local 6 of the Service Employees International Union

(“Local 6”) is a labor union representing 10,000 workers in

Washington. As almost every improvement in the condition of

working people has been accomplished by the efforts of organized

labor and as the welfare of workers in Washington can best be

protected and advanced by united action, the mission of Local 6 is

to gather and expend its resources and to unite and empower its

members for the advancement of working people. As a organiza-

tion, Local 6 believes that people should exercise control over their

lives and take responsibility for their decisions.

The mission of Temple De Hirsch Sinai (“Temple”) is to

serve the spiritual needs of its congregation through the observa-

tion, celebration, and study of reformed Judaism. It affirms the

principles of reformed Judaism through its religious services, life

4-A

cycle ceremonies, religion school, social action, and outreach to

individuals and families. The Temple promotes Jewish ideals in

personal conduct, dedication, family and community life, and in its

partnership with other institutions. Its interest comes under the

tenets of the Old Testament, where all Jews are admonished to

assist and share with the provision of food, clothing, and shelter for

those less fortunate. The Temple’s specific interest in this case is

equal treatment of all citizens of this country.

The Older Women’s League (“OWL”) is a national organi-

zation working to better the lives of all midlife and older women.

One of its agenda items is “Staying in Control Through All of

Life.” OWL works to improve policies and legal means to protect

each individual's decision-making capability affecting quality of life

until its ending. The Seattle/King County Chapter of OWL joins as

amicus to support the right of the terminally ill to decide to end

their suffering.

AMICUS CURIAE

BRIEF

ie es eae ia aT 2 "ia * ev » - or ers ie ‘)-° 4 ee.

4 7 ¢ tale oo ; i’ ; 7 >

What 42? : a ee

CBAs ‘ . | Supreme Court, U.S.

FILED

DEC 10 1996

3 a) CLERK

Gb). 6) :

Nos. 96-110 and 95-1858

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1996

State of Washington

_Glucksberg

Vacco

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT

OF APPEALS FOR THE SECOND AND NINTH CIRCUITS

Brief for the Amici Curiae:

Gay Men's Health Crisis and

Lambda Legal Defense and Education Fund:

On Behalf of their Members with Terminal Illnesses;

and Five Prominent Americans with Disabilities:

Evan Davis, Hugh Gregory Gallagher, Barbara Swartz,

Michael Stein and Susan Webb

grapnaciian gp ane Bm

Attorneys for Amici —

Andrew I. Batavia, Counsel of Record

Bryan R. Cleveland

Marina L. Fontani

Susan F. Dournaux

McDermott, Will & Emery

201 S$. Biscayne Boulevard

Suite 2200

Miami, Florida $3131

($05) 347-3500

——— — ~~ ~-

BEST AVAILABLE COPY

TABLE OF CONTENTS

Il. SUMMARY OF ARGUMENT

iil. ARGUMENT

A. PEOPLE WITH DISABILITIES ASSERT THAT

PEOPLE WITH TERMINAL ILLNESSES HAVE A

CONSTITUTIONAL RIGHT TO HASTEN

INEVITABLE DEATH WITH THE ASSISTANCE

OF THEIR PHYSICIANS

Competent, Terminally Ill Adults Have a

Strong Liberty Interest Under the Fourteenth

Amendment in Making End-of-Life Decisions

Free of Undue Government Interference ... .

The Second Circuit Implicitly Agreed With the

Ninth Circuit That There is a Liberty Interest

for People with Disabilities (and Other

Individuals) With Terminal Illnesses in

Hasiening Their Own Death

The Liberty Interest Asserted Here Is

Fundamental and May Not Be Impaired

Without a Compelling State Interest

There is No Compelling State Interest in

Denying Terminally Il Individuals the Right to

Die, and the Liberty Interest of the Individual

Substantially Outweighs Any State Interests.

5. The Legitimate State Interest in Protecting

People with Terminal Illnesses or Other

Disabilities from Abuses Can Be Protected

Through State Regulation ........665+.

B. THE RIGHT TO ASSISTANCE IN DYING WILL

BENEFIT PEOPLE WITH TERMINAL

ILLNESSES, AND WILL NOT ADVERSELY

AFFECT OTHER PEOPLE WITH

DISABILITIES .....cccccccccecceenees

1. Neither the Strong Liberty Interest in

Hastening Death, Nor the Diminished State

Interest in Interfering With This Decision, Are

Based on Any Externally-Imposed Quality-of-

Life Considerations .......++eeee0888

2. The Right to Hasten Inevitable Death is a

Benefit for People with Terminal illnesses That

is Not Prohibited By Either the Equal

Protection Clause or the Americans with

ee. a

3. The Standard of Terminal Illness Will Allow

States to Prevent People Who Are Not

Terminally Ill from Ending Their Lives With

Physician Assistance .......---e50e065

4. The Standard of Voluntariness Will Allow

States to Ensure Only Competent Individuals

Who Choose to Hasten Death With Assistance

Are Allowed to Do So .. 2... 2 ee ee ee eee

5. Inthe United States, the Right of Terminally Il

Individuals to Choose Assisted Suicide Will

Never Be Converted into a Right of the State to

Authorize the Murder of People with

EEE oceccceccceceooosccetees

. DENIAL OF THE RIGHT TO ASSISTANCE IN

DYING WOULD DENY PEOPLE WITH

TERMINAL ILLNESSES THE EQUAL

PROTECTION OF THE LAWS ............

- ACOMPASSIONATE SOCIETY THAT RESPECTS

PEOPLE WITH DISABILITIES MUST NOT DENY

TERMINALLY ILL INDIVIDUALS THE RIGHT

TO END THEIR SUFFERING WITH

CEEEEUEEES Cocccccccceceecoceeeoees

1. The Decision of a Competent, Terminally Il

Individual to End His or Her Life Must Be

Assumed to Be Rational and Should Be

MEE wo cececeesoecescoseoeeces

2. Recognition of the Right to Receive Physician

Assistance Will Serve to Ensure Safety and

DPT eeccheseccossonaceees

3. People with Terminal Ilinesses Should Not Be

Compelled to Die in a Drug-Induced Semi-

GU GEE oc ccccccceooscencees

4. Physician Assisted Suicide Allows People with

Terminal Illnesses to Postpone Ending Their

Lives Until a Later Phase of Their Illness . . .

IV. CONCLUSIONS .... cc ccccccccscccccces

APPENDIX

Trautz v.. Weisman, 819 F. Supp. 282 (S.D.N.Y. 1993) . 17

TABLE OF AUTHORITIES |

) Youngberg v. Romeo, 457 U.S. 307 (1982) ....... 4, 13

Cases

City of Cleburne, Tex. v. Cleburne Living Center, 473 | Constitutional Provisions

re ¢ Perrerrrrrrire ee eee 17

' er U.S. Const. amend. XIV,§ 1 ........ 9-12, 16, 17, 24

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

Le S I errrrrrrrrrirrr ye 10, 13

Statutes

ruzan v. Dir., Mo. Dept. of Health, 497 U.S. 261

men ~ : 8 beeenee #6 be seeeeensesed 10-13, 21 The Americans with Disabilities Act of 1990, 42 U.S.C.

S Eee GO GUM, Gree bo cecccccceccesces 3, 4, 17-19

is v. United States, 160 U.S. 469 (1895) ........ 25 |

pues ns ' The Individuals with Disabilities Education Act, 20

Garger v. New Jersey, 429 U.S. 922 (1976) ........ 14 U.S.C. § 1400, et seq. (1991) 2.2... ee eee eee ees 4

H.L. v. Matheson, 450 U.S. 398 (1951) .... 2.6.44. 25

) Treatises and Other materials

} , 598 F.2d 36 (Cal. 1979) .... 4 |

In re Marriage of Carney ( a. porn :

In Re Quinlan, 355 A.2d 647 (N.J. 1976), cert. denied sub News? Or Bad?, 335 N. Eng. J. Med. 1676 (Nov. 28,

ge A SEE x, ni dace tiansesees 14 OO CEO OES Coc cenSeeeoeéeseeseeecse 20

raham v. Wright, 430 U.S. 651 (1977) ......... 11 Asch, David A., The Role of Critical Care Nurses in

~ pes. _ | Euthanasia and Assisted Suicide, 334 N. Eng. J. Med.

Olmstead v. United States, 277 U.S. 438 (1928) ...... 10 | SPU 6066660066 6660000666668 668 27

. Casey, 505 U.S. 833 (1992) . 10, 14 | Breitbart, William et al., Interest in Physician-assisted

umeiieemnaai - , Suicide Among Ambulatory HIV-Infected Patients, 153

Quill v. Vacco, 80 F.3d 716 (2nd Cir. 1996)... 11, 12, 24 Am. J. Psychiatry 238 (1996) .............. 4, 26

. Weinberger, 372 F. Supp. 1196 (D.C.D.C. 1974) . 4 Coode, M., et al., Dying of AIDS: The Role of

— = > Caregivers in Terminal Care and Hastened Death,

Reno v. Flores, 507 U.S. 292 (1993) ........... 12, 13 Center for AIDS Prevention Studies, University of

California, San Francisco, Paper presented at the

Roe v. Wade, 410 U.S. 113 (1973) ........545- 10, 26

iv v

10th International Conference on AIDS, Yokohama,

Japan (August, 1994) 2... 6.06 eee eee eeeenes

DeJong, Gerben, Independent Living: From Social

Movement to Analytic Paradigm. 60 Arch. Physical

Med. Rehab. 435 (1979) .... 2... ccc eeenceeees

Docker, Chris, Euthanasia in Holland, { 1 (1996)

< http://www.euthanasia.org/ dutch.html> ......

Evangelisto, Mary, Death with Dignity: End-of-Life

Issues for the HIV/AIDS Patient, 34 J Psychosoc.

Nurs. 45 (1996) ..... cc ccceccccsccesesees

Friedman, Roger F., it’s My Body and I'll Die if I

Want To: A Property-Based Argument in Support of

Assisted Suicide, 12 J. Contemp. Health L. & Pol’y

BOR TBD cccccccccccccesceseececceses

Gabel, Jody B., Release From Terminal Suffering?

The Impact of AIDS on Medically Assisted Suicide

Legislation, 22 Fla. St. U.L. Rev. 369, 372-73 (1994) .

Gostin, Lawrence O., & Henry A. Beyer, eds.,

- IMPLEMENTING THE AMERICANS WITH DISABILITIES

ACT: RIGHTS AND RESPONSIBILITIES OF ALL

Apemperags IGE nc cccccccecccecceeesees

Lehr, Dick, Death & the Doctor's Hand, Increasingly,

Secretly, Physicians Are Helping the Incurably Ill to

Die, Boston Globe, Apr. 25, 1993 .......-6006

Louis Harris and Associates, Harris Poll no. 9, Table

BOB CIGD oc cccccccccceseescececeecesees

Manning, Christopher N., Live and Let Die?

Physician-Assisted Suicide and the Right to Die, 9

Harv. J.L. Tech 513, 515 (1996) ... 2... 200 ees

A A A Se -

= ee eter eee 6

McKhann, Charles F., Js There a Role for

Physician-Assisted Suicide in Cancer? Yes, Important

Advances in Oncology 267, 269 (1996) ........ 26, 28

Nagler, M., PERSPECTIVES ON DISABILITY (2nd ed.

SE $0 ONEOC Coeed ces sbceececsdéneneceoe 4

Pflueger, Susan S., Independent Living: Emerging

Issues in Rehabilitation, foreword ii (December,

—. PUTTY TTT rei et eee eee 3

Sitcoff, Jeremy A., Death with Dignity: AIDS and a

Call for Legislation Securing the Right to Assisted

Suicide, 29 J. Marshall L. Rev. 677, 687 (1996) .... 27

Slome, L., et al., Physicians’ attitudes toward assisted

suicide in AIDS, § J. AIDS 712-18 (1992)

Tindall, Brett, et al., Attitudes to Euthanasia and

Assisted Suicide in a Group of Homosexual Men with

Advanced HIV Disease, 6 J. Acquir. Immune. Defic.

ah SPO ao coccescecececececees 5, 26

Van der Mass, P.J., et al., Euthanasia, Physician-

Assisted Suicide and Other Medical Practices Involving

the End of Life in the Netherlands, 1990-1995, 335 N.

Eng. J. Med. 1699 (Nov. 28, 1996) ............ 20

Van Der Wal, G., et al., Evaluation of the Notification

Procedure for Physician-Assisted Death in the

Netherlands, 335 N. Eng. J. Med. 1706 (Nov. 28,

2 +-ehdeabhs ehbbaeeceessaanaehad cue 20

West, Jane, ed., THE AMERICANS WITH DISABILITIES

ACT: FROM POLICY TO PRACTICE (1991) .......... a

West, Jane, ed., IMPLEMENTING THE AMERICANS

WITH DISABILITIES ACT (1996) ...........2005. 4

vii

I. INTERESTS OF AMICI CURIAE'

with disabilities do not speak with one voice on

whether individuals with terminal illnesses should be permitted

to end their own suffering with the assistance of their physicians

and to choose a death with dignity. While some members of the

disability community have been extremely vocal in opposing the

right to assisted suicide, the majority of individuals with disabil-

ities, including the Amici filing this brief, believe that such a right

exists — that it is entirely consistent with our Constitutional

tradition and the hard-fought rights secured by the disability

rights movement in this country.

Amici are individuals and organizations representing people

with a broad array of disabilities who share the common belief

that individuals with disabilities should have autonomy over the

decisions that affect their lives. They believe that the funda-

mental right of self-determination must apply to all significant

life decisions, including what is perhaps the most intimate and

personal decision of all, whether to hasten impending death if

their conditions become terminal and they are suffering

intolerably.

The two Amici organizations represent people who have

AIDS, some of whom are in the terminal phase of their illnesses.

The Lambda Legal Defense and Education Fund is a national

non-profit public interest legal organization working for the civil

rights of people with HIV and AIDS. The Gay Men’s Health

Crisis is the oldest and largest not for profit AIDS organization

providing services to people with AIDS and their loved ones,

educating the public and advocating for fair and effective AIDS

policies. These organizations contend that the state should not be

allowed to prohibit their members from receiving the assistance

of their physicians in ending their lives when they have decided

that life is no longer bearable.

' Amici were granted consent to file this brief.

. me ey

The individual Amici are leaders in the disabili i

a individuals with disabilities. or enna

o oA th a major national law firm who had polio at age five.

~ Penn pa is one of the leading historians on disability in

~ A... ry. Michael Stein is the former President of the

aad | Disability Bar Association. Barbara Swartz is a

a = who tage disease. Susan Webb is the director of

ected member of te al ‘ann i ~ te one ng

have disabilities but not terminal ae astien Fs :

Should have the right to hasten their death should they mo

become terminally ill. Their

. personal statemen

an appendix to this brief. mae amass as

Amici believe that the Constitution guarantees

patna the right to end their lives in a a ro

remarndy 7 he maintain personal dignity. The attempt of Peti-

rp Parvnd amict to use disability to justify state deprivation

Ss fun tal right is deeply offensive to Amici and the

housands of people with disabilities they represent.

A. The Disability Rights Movement

The disability rights movement is a social movement wi

decane aati and autonomy fr people wit

* ‘ r lives. Gerben

roy sernged Living: From Social Movement to Analytic Mae

dig t tee Med. Rehab. 435 (1979),? Judy Heumann,

wt oneers of the movement, co-founder of the World

ns tute on Disability and currently the Assistant Secretary f.

Special Education and Rehabilitation Services at the U s.

- * The terms “disability rights movement” “independen

rte | \ esnnnemssel are often used interchangeably Rael. of ~~

. — case anya Whether they are two Separate social movements

~ the names for basically the same movement is a matter of debate.

ee of this brief, the broader term “disability righ

is used to refer to both. ™

Department of Education, expressed the driving spirit of the

movement best in an early policy report:

To us, independence does not mean doing things

physically alone. It means being able to make

independent decisions. It is a mind process not

contingent upon a “normal” body.

Susan Stoddard Pflueger, Independent Living: Emerging Issues in

Rehabilitation, foreword ii (December, 1977) (unpublished report

on file with the Institute for Research Utilization).

Similarly, Edward V. Roberts, one of the founding fathers

of the movement, made the following observation:

I believe that the basic premise of the ... movement is

that everyone has potential to live more

independently. Our experience shows that even the

most severely and profoundly disabled individual can

be independent — they may need all kinds of help —

But that they can be in control of their lives.

Id. at 1 (emphasis added).

Over time, the movement has been successful in altering the

general belief in our society that people with disabilities are

invariably vulnerable, exploitable, and incapable of making

decisions that fundamentally affect their lives. Until recently,

however, most people with disabilities accepted the predominant

paternalism concerning disability and the control of their lives by

other people, often to their detriment. It was only after three

decades of political struggle, with the bipartisan enactment of The

Americans with Disabilities Act of 1990 (the ADA) that our

nation developed a consensus that competent adults with disabil-

* The Americans with Disabilities Act of 1990, 42 U.S.C. § 12101

et seq. (1990).

Oe a ee es

ities can and should exercise control of their lives in the

mainstream of our society.‘

Among the rights that the movement has secured for people

with disabilities are the right to live in the community, as

opposed to in isolated, degrading and disempowering institutions,

Youngberg v. Romeo, 457 U.S. 307 (1982); the right to be free of

involuntary sterilization, Relf v. Weinberger, 372 F. Supp. 1196

(D.C.D.C. 1974), the right to raise a child, In re Marriage of

Carney, 598 P.2d 36 (Cal. 1979); the right to have access to

public streets, public transportation, schools, public services,

privately owned places of public accommodation and places of

employment, 42 U.S.C. §§ 12111-12181; and the right to a free

and appropriate education, 20 U.S.C. § 1400 et seg. (1991).°

Entirely consistent with these rights is the right to control

one’s death when it is imminent — arguably the most fundamental

right of all.

B. The Views of People with Disabilities

According to a major public opinion poll, 66 percent of

people with disabilities support the right to assisted suicide, as

compared with 70 percent of the general population. Louis

Harris and Associates, Harris Poll no. 9, Table 105 (1995). This

result is corroborated by a recent study which found that 63

percent of people with AIDS support this right, and 55 percent

actually have considered this option for themselves. William

* See generally, Jane West, ed., THE AMERICANS WITH

DISABILITIES ACT: FROM POLICY TO PRACTICE (1991); Jane West, ed.,

IMPLEMENTING THE AMERICANS WITH DISABILITIES ACT (1996); Mark

Nagler, PERSPECTIVES ON DISABILITY (2nd ed. 1993); Lawrence O.

Gostin & Henry A. Beyer, eds., IMPLEMENTING THE AMERICANS WITH

DISABILITIES ACT: RIGHTS AND RESPONSIBILITIES OF ALL AMERICANS

(1993).

* The Individuals with Disabilities Education Act (IDEA).

Breitbart, et al., Interest in Physician-assisted Suicide Among

Ambulatory H1V-Infected Patients, 153 Am. J. Psychiatry 238

(1996). Another study found that 90 percent of people with AIDS

support the right. Brett Tindall et al., Attitudes to Euthanasia

and Assisted Suicide in a Group of Homosexual Men with

Advanced HIV Disease, 6 J. Acquir. Immune. Defic. Syndr. 1069

(1993).

While resolution of this issue by a poll of those most

affected would quickly end criminalization of assisted suicide,

constitutional issues are not rightly settled by popular vote. The

personal and religious views of those who support either side of

this national debate are immaterial to the question of whether

patients who are terminally ill have a constitutional right to

receive such assistance. However, the experiences and treatment

realities of those who have lived with disabilities, including cancer

and AIDS, are relevant to the Court’s analysis. These

experiences provide an explanation of why a decision, and request

for assistance in accelerating death, is a legitimate treatment

option which merits Fourteenth Amendment protection.

The experiences of those involved in the treatment of AIDS

are particularly illustrative. Since the beginning of the AIDS

epidemic in the early 1980s, people with AIDS and their

advocates and service providers have been committed to ensuring

that an individual with AIDS has as much autonomy in his or her

life as possible. Many living with this disease have been involved

decision makers in each stage of their treatment. In striving to

maintain control over their lives as their physical conditions

deteriorate, they have made increasing use of legal planning

documents such as health care proxies and powers of attorney to

maintain control of their final days. The right to end their lives

with the assistance of their physicians is a natural extension of

their efforts to maintain autonomy. The state’s intrusion,

effectively forcing a person to continue living against his or her

will, destroys the autonomy that has heen central to the struggles

of people with disabilities.

Based on their experiences, it is clear that people with

disabilities, like the public at large, believe that the state should

ee eee ———

not be allowed to interfere with a terminally ill individual’s

personal decision of how and when to die. This important fact

has been obscured by the vocal minority of those disability

leaders who adamantly oppose recognition of the right to assisted

suicide. Given the above statistics and the hard-fought battle for

people with disabilities to win their autonomy, it is anomalous

that some, purporting to represent the interests of people with

disabilities, are advocating in favor of the state’s right to

interfere with the individual’s autonomy.

In essence, those disability rights advocates opposing the

right to assisted suicide appear to be saying that the individual

with a disability should have control over every decision in his or

her life, except for the decision of whether to live in the face of

a terminal illness. This blatant contradiction is glaring and

unacceptable to a substantial majority of people with disabilities.

C. The Interests of People with Disabilities

The interests of Amici are similar to the interests of millions

of people with disabilities throughout this country. Although the

personal circumstances of people with disabilities vary substan-

tially, they share a common interest in maintaining control over

their lives, including the ability to choose a dignified death.

The disabilities of some individuals, such as the individual

Amici, will never be life-threatening or reach a terminal phase.

To these individuals, issues concerning assisted suicide are the

same as those for anyone else, except that some have a greater

physical need for assistance. Like people without disabilities,

these Amici want the right to make this choice for themselves if

they someday become terminally ill. They do not want to be

deprived of this right simply because they have disabilities. Nor

do they want their disabilities to be used by others to justify a

wholesale denial of this right.

Other individuals have disabilities which are more likely to

become life-threatening, such as the individuals with AIDS

represented hy the two Amici organizations. For these Amici, the

issue of whether there is a right to obtain physician assistance in

hastening death has a more immediate and direct impact. Amici

in this situation want to be able to retain autonomy in making

decisions about whether or when to end irreversible suffering if

their illness or disability enters a terminal phase.

All Amici have a significant interest in how this issue is

resolved. While not all are certain whether they would ever

decide to hasten their own deaths, all want the freedom of

knowing that this option will be available if the worst were to

occur. Further, they want the security of knowing that they can

exercise this option safely, effectively and legally with professional

assistance. Amici believe that this would be a uniquely personal, |

moral and religious decision, one that would primarily impact

themselves and their loved ones — a decision that they should

have the right to make for themselves without undue state

interference.

In his personal statement, Amicus Evan A. Davis expresses

concern that this Court may be misled by disability organizations

claiming recognition of a right to die with the assistance of one’s

physician would harm people with disabilities. He points out:

The narrow issue before this Court is whether a

terminally ill person whose death is inevitable and

imminent has a right to die with dignity. Thus this

case concerns only circumstances where life is already

ebbing out and the natural process of death has

already begun. In these circumstances I do not want

myself or any others to be deprived of an ability to

die with dignity because of arguments about the

interests of people with disabilities that are not

accurate or germane.

Personal statement of Evan A. Davis.

lil. SUMMARY OF ARGUMENT

Like others in our society, people with disabilities wish to

define their concept of existence, and to have autonomy over the

uniquely personal decisions that effect their lives. Unlike most

other people, many of their basic rights have been denied until

very recently. After having fought for their rights for so long,

and having achieved recognition through enactment of the ADA

as citizens fully capable of autonomy, they are offended that, on

the basis of their disabilities, others are attempting to deny them

and all other Americans the right to end their lives with dignity

if they become terminally ill. '

People with terminal illnesses have a liberty interest under

the Fourteenth Amendment to end their lives with the assistance

of their physicians, if they so choose. This liberty interest must

be considered fundamental. It is at least as strong as other

liberty interests recognized by this court, such as the right to

terminate life support. Specifically, the current cases involve the

right of an individual who is acutely aware of his or her suffering

and impending death, and whose decision to hasten death by a

few days or weeks does not harm the interests of any other

person or potential person.

Assuming that the right is fundamental, the blanket pro-

hibition in this case denying the right to all terminally ill

individuals is not a narrowly tailored restriction necessary to

achieve a compelling state interest. In fact, there is no

compelling state interest in denying a person who is suffering and

has little life left from ending his or her life with dignity. Any

interests that the state has in denying the right are significantly

outweighed by the interests of the individual. All legitimate state

interests, such as ensuring competence, preventing coercion, and

avoiding abuse, may be achieved through state regulation that

does not unduly interfere with the basic right.

All objections raised by members of the disability

community who oppose recognition of the right are either

misplaced or may be addressed through appropriate regulation.

Contrary to their assertions, neither the liberty interest in

hastening death with physician assistance nor the diminished state

interest in preventing this from occurring is in any way based

upon quality of life considerations being imposed on the

individual. It is derived from the autonomy of terminally ill

individuals to determine whether they wish to continue to live

with their suffering for the brief remainder of their lives.

Moreover, any objections based on the Equal Protection

Clause and the ADA lack merit. Terminally ill individuals are

not similarly situated to people who are not terminally ill. They

are dying, soon and often in great pain, and the right to end their

suffering and control their deaths is a significant benefit to them.

Giving them that respect does not deny them the protection of the

state and does not discriminate against them in any way.

In contrast, as the Second Circuit found, competent,

terminally ill individuals are similarly situated to people on life

support who, when competent, indicated that they did not wish

to live under those circumstances. Denying terminally ill

individuals the right to assisted suicide violates the Equal

Protection Clause.

In a compassionate society that respects the autonomy of

people with disabilities, we must not deny people with terminal

illnesses the right to end their suffering. For these individuals,

physician assistance is the only means by which to ensure that

their lives will end in a safe and humane manner.

iil. ARGUMENT

A. PEOPLE WITH DISABILITIES ASSERT THAT

PEOPLE WITH TERMINAL ILLNESSES

HAVE A CONSTITUTIONAL RIGHT TO

HASTEN INEVITABLE DEATH WITH THE

ASSISTANCE OF THEIR PHYSICIANS

1. Competent, Terminally Ili Adults Have a

Strong Liberty Interest Under the

Fourteenth Amendment in Making End-of-

Life Decisions Free of Undue Government

Interferen e°

Because of the long struggle for recognition of their

autonomy, the Fourteenth Amendment’s Due Process limitations

on the state’s ability to intrude into the most important and

personal matters of our lives has particular importance to people

with disabilities. Amici agree with the Ninth Circuit that there is

a liberty interest in determining the time and manner of one’s

death, and that “[cjertainly, few decisions are more personal,

intimate or important than the decision to end one’s life,

especially when the reason for doing so is to avoid excessive and

protracted pain." Compassion in Dying v. State of Washington,

79 F.3d 790, 813 (9th Cir. 1996).

Amici further agree with the Ninth Circuit’s application of

Planned Parenthood v. Casey, 505 U.S. 833 (1992) (aff'g Roe v.

Wade, 410 U.S. 113 (1973)) and Cruzan v. Dir., Mo. Dept. of

Health, 497 U.S. 261 (1990)). The right to "define one’s own

concept of existence," found in Casey, 505 U.S. at 851, and to

* Although the Ninth Circuit decided this case on the basis of a

Fourteenth Amendment liberty right, and this brief will focus on that

right, Amici believe that there are additional bases for finding a right

to assisted suicide. In particular, they contend that there is a strong

privacy right in the Constitution for people with terminal illnesses to be

protected from state intrusion. As Justice Brandeis stated in his famous

dissent in Olmstead v. United States, 277 U.S. 438, 478 (1928), the

framers of the Constitution "conferred, as aguinst the government, the

right to be left alone--the most comprehensive of rights, and the right

most valued by Civilized men." In addition, at least one commentator

has argued that a Fourteenth Amendment property right in one’s body

precludes state prohibition of assisted suicide. Roger F. Friedman, /1’s

My Body and I'll Die if 1 Want To: A Property-Based Argument in

Support of Assisted Suicide, 12 J. Contemp. Health L. & Pol’y 183

(1995).

have autonomy over the “uniquely personal decisions” that affect

their lives, found in Cruzan, 497 U.S. at 281, are extremely

important to people with disabilities. Where for generations,

almost every aspect of their existence was defined by a

paternalistic society that labeled them inferior and relegated them

to institutions, they are unwilling to relinquish their autonomy.

This Court has previously found that a liberty interest is

implicated when an individual is subject to state-imposed pain

and suffering, even when such pain and suffering involves no

more than a student being paddled for disciplinary purposes.

Ingraham v. Wright, 430 U.S. 651, 674 (1977). In the current

cases, the states are effectively forcing terminally ill individuals

to incur severe pain and suffering. The state’s interest in

preventing the individual from escaping this anguish is minuscule.

The liberty interest asserted here is also no less compelling

than that in Cruzan, where this Court recognized a competent

individual’s liberty right to refuse medical treatment and obtain

active medical assistance in withdrawing existing treatment even

when this will result in death. Cruzan, 497 U.S. at 261. Here,

Respondents and Amici seek recognition of a right for terminally

ill individuals to obtain medical assistance that will likewise cause

death. While Nancy Cruzan could have lived for years

unconscious on life support, the individuals in this case were fully

conscious of their brief remaining life, their pain and suffering,

and their desire to end their suffering.

2. The Second Circuit Implicitly Agreed With

the Ninth Circuit That There is a Liberty

Interest for People with Disabilities (and

Other Individuals) With Terminal Iinesses

in Hastening Their Own Death

Although the Second Circuit decided Quill v. Vacco, 80 F.3d

716 (2nd Cir. 1996), based on the Equal Protection Clause of the

Fourteenth Amendment, it is clear from its language that there

is a due process liberty interest in deciding when and how to die.

Quill, 80 F.3d at 725. In discussing “the protection of minorities,

the poor, and the non-mentally handicapped," the court con-

cluded that “[ijn point of fact, these persons themselves are

entitled to hasten death by requesting [withdrawal of life support]

and should be free to do so by requesting appropriate medication

to terminate life during the final stages of terminal illness. Quill,

80 F.3d at 730 (emphasis added).

As one commentator concluded, “[t}he Second Circuit

...Says that no such liberty interest exists, yet in effect bases its

Equa! Protection Clause analysis on the existence of just such an

interest." Christopher N. Manning, Live and Let Die? Physician-

Assisted Suicide and the Right to Die, 9 Harv. J.L. Tech 513, 515

(1996). Thus, while certiorari was granted in this case in part

due to differences in the reasoning of the two Circuit courts,

there seems to be greater agreement between the Circuits that

there is a liberty right to assisted suicide than is apparent from

the Second Circuit’s holding.

3. The Liberty Interest Asserted Here Is

Fundamental and May Not Be Impaired

Without a Compelling State Interest

These cases are about the ability of a terminally ill

individual to die with dignity; however, they are equally about

whether we, as a society, believe that the state should be allowed

to impose itself at the patient’s deathbed, between the patient,

family members and the physician, as an equal medical decision

maker. They are about whether terminally ill individuals are

accorded the respect they deserve in making what may he the

most difficult decision of their lives, and whether the state may

incarcerate their physicians for honoring their request.

Amici believe that the ability of the state to intrude in and

inte: fere with the final wishes of a dying person is unacceptable

in a free society. They contend that the decision of terminally ill

individuals to select the time and manner of their deaths cannot

be infringed upon by a state without a compelling state interest

that is achieved through a narrowly-tailored restriction. Reno vy.

Flores, 507 U.S. 292, 301-02 (1993). Amici agree with Justice

Stevens, who in his dissent in Cruzan, concluded "[c}hoices about

death touch the core of liberty. Our duty, and the concomitant

freedom, to come to terms with the conditions of our own

mortality are undoubtedly “so rooted in the traditions and

conscience of our people as to be ranked as fundamental..."’

Cruzan, 497 U.S. at 343 (emphasis added).

4. There is No Compelling State Interest in

Denying Terminally Il Individuals the Right

to Die, and the Liberty Interest of the

Individual Substantially Outweighs Any

State Interests

If this Court finds the interest being asserted here is

fundamental, as Amici contend, any restriction on pursuing that

interest must be narrowly tailored to further a compelling state

interest. Reno, 507 U.S. at 301-02. The restrictions being

considered are not narrowly tailored; they fully preclude

individuals from obtaining the assistance of their physicians in

hastening their death. Moreover, there is no compelling state

interest that would justify the denial of the final wish of a

suffering terminally ill individual to end his or her life with

dignity.

If, on the other hand, this Court finds the interest asserted

is only important, it must be balanced against other relevant state

interests. Cruzan, 497 U.S. at 279; Youngberg, 457 U.S. at 321.

After an exhaustive analysis of all relevant state interests, the

Ninth Circuit found that the balance weighs heavily in favor of

the individual. Compassion in Dying, 79 F.3d at 799. Amici

agree with this analysis, and wish to add only that the interests

of the state in protecting competent people with terminal illnesses

(or people with other disabilities) is no greater than its interest in

protecting other competent individuals.

” Justice Stevens further found that “... not much may be said

with confidence about death unless it is said from faith, and that alone

is reason enough to protect the freedom to conform choices about death

to individual conscience.” Jd. Amici strongly agree. See Statement of

Amicus Evan Davis.

’

“

Amici .recognize the legitimate interest of the state in

protecting and preserving life. The interest in protecting life is

best furthered by ensuring that the decision to end life with the

assistance of a physician, is made voluntarily, by a competent,

terminally ill individual. The state always has this interest and

may pursue it through effective regulation.

However, the state’s interest in preserving life diminishes,

and the interest of the individual to be protected from state

intrusion increases, as the potential for life diminishes. Jn Re

Quinlan, 355 A.2d 647 (N.J. 1976), cert. denied sub nom 429 U.S.

922 (1976). Garger v. New Jersey, 429 U.S. 922 (1976). The

interest of the terminally ill individual in ending his or her

suffering far exceeds that of the state in preserving what little life

remains.

While Amici recognize the legitimate interests of the state in

protecting individuals from the actions of others, they and the

majority of people with disabilities in this country do not want

the protection of the state from their own actions and decisions.

5. The Legitimate State Interest in Protecting

People with Terminal Winesses or Other

Disabilities from Abuses Can Be Protected

Through State Regulation

The state has a legitimate interest in ensuring that all

individuals who seek physician assisted suicide are competent

adults who have made their decision voluntarily, without coercion

or undue influence. In addition, the state may legitimately seek

to ensure that the individual has had access to medical or

psychological counseling and is fully aware of his or her options.

See personal statement of Amicus Barbara Swartz.

A state may enact rules to protect state interests so long as

they do not impose an undue burden “with the purpose or effect

of placing a substantial obstacle in the path of" the ability to

make the constitutionally protected decision. Casey, 505 U.S. at

877. In the context of physician assisted suicide, the state may

not regulate with the purpose or effect of placing a substantial

obstacle in the path of a terminally ill individual to end his or her

life with the assistance of a physician.

There are, however, clear measures a state might take to

protect its legitimate interests. In particular, as long as it does

not cross over the substantial-obstacle line, a state might impose

the following safeguards:

® requiring the individual to repeat the request on

more than one occasion;

® requiring the request to be made to more than

one doctor;

® requiring the individual to be provided an

opportunity to discuss the decision with a mental

health professional;

® requiring the individual to he informed of

programs and resources that are available to

improve the quality of his or her remaining life;

and

® requiring the individual to be informed on several

occasions that he or she may, and is encouraged

to, change his/her mind at any time.

These illustrate several of the requirements a state would

be allowed to impose to protect its legitimate interest in ensuring

competent, voluntary decisions and preventing coercion to choose

hastened death. In addition, states may require hospitals,

nursing homes, and other medical institutions to report on their

compliance with these requirements.

Amici are committed to ensuring that the right of terminally

ill individuals to obtain physician assistance in dying with dignity

is not abused, that all individuals who choose to hasten their

deaths do so freely, without pressure or coercion, and that they

are aware of available options should they choose to continue to

live. See personal statement of Amicus Susan Webb.

B. THE RIGHT TO ASSISTANCE IN DYING

WILL BENEFIT PEOPLE WITH TERMINAL

ILLNESSES, AND WILL NOT ADVERSELY

AFFECT OTHER PEOPLE WITH

DISABILITIES

1. Neither the Strong Liberty Interest in

Hastening Death, Nor the Diminished State

Interest in Interfering With This Decision,

Are Based on Any Externally-Imposed

Quality-of-Life Considerations

Some disability organizations that oppose the right to

assisted suicide contend that the right is based on a social

perception that people with terminal illnesses and other

disabilities have a diminished quality of life. This contention is

inaccurate. The strong liberty interest of terminally ill

individuals in controlling the circumstances of their deaths, and

the diminished state interest in interfering with this decision, are

derived from their autonomy in making decisions about what

little remains of their lives.

The interests do not derive in any way from any perceived

diminished quality of life for individuals with disabilities or

terminal illnesses. Quality of life is a subjective valuation

belonging to the individual, not the courts or the states. Whether

the quality of the life remaining for a terminally ill person is

sufficient to justify whatever pain and suffering he or she may be

enduring is a decision for that person, and that person alone.

2. The Right to Hasten Inevitable Death is a

Benefit for People with Terminal illnesses

That is Not Prohibited By Either the Equal

Protection Clause or the Americans with

Disabilities Act.

Some opponents of the right argue that it would deprive

people with disabilities of the equal protection of the laws and

would otherwise discriminate against them in violation of the

ADA. These arguments are based on a _ fundamental

misunderstanding of the right. They characterize the benefit to

terminally ill individuals of a right to hasten their own death as

the discriminatory denial of a statutory right to be protected

from their own decisions to end their lives. Regardless of this

flip-flopped reasoning, the majority of people with disabilities

regard the right to death with dignity as a benefit, not a legal

detriment.

The Equal Protection Clause of the Fourteenth Amendment

commands that no state shall "deny to any person within its

jurisdiction the equal protection of the laws," which essentially

means that all persons who are similarly situated should be

treated alike.* City of Cleburne, Tex. v. Cleburne Living Center,

473 U.S. 432, 439 (1985). The threshold question is whether

people with terminal illnesses are similarly situated to non-

terminal individuals with respect to their interest in dying. The

answer is clearly no. Terminally ill individuals who are at the

end of their lives, often with severe pain and suffering, have a

different interest in end-of-life decisions than others.

* It is currently not clear what standard of review should apply

to legislative classifications based on disability for purposes of equal

protection analysis. On the one hand, the Supreme Court clearly found

that people with mental retardation (perhaps the most vulnerable group

in the disability community) are not entitled to heightened scrutiny.

Cleburne, 473 U.S. at 422. On the other hand, Cleburne was decided

in 1985S, prior to the Congressional finding in the enactment of the ADA

that “individuals with disabilities are a discrete and insular minority

who have been faced with restrictions and limitations, subjected to a

history of purposeful unequal treatment, and relegated to a position of

political powerlessness in our society based on characteristics that are

beyond the control of such individuals . . .." 42 U.S.C. § 12101(a)(7).

Based on this finding, this Court may find that legislative classifications

based on disability must receive the highest level of scrutiny. Cf. Trautz

v. Weisman, 819 F. Supp. 282 (S.D.N.Y. 1993). Whichever standard

this Court decides to apply, the right of terminally ill individuals to end

their lives does not violate the Equal Protection Clause for reasons

discussed herein.

Moreover, given the nature of the right at issue here, it is

more appropriately viewed as an interest held by al! individuals

that may be exercised as a right if and when they become termin-

ally ill, rather than a right held by terminally ill individuals and

not others. Terminal illness, like disability generally, does not

discriminate; it may affect anyone. Denying people who are not

terminally ill the right to end their lives with physician assistance,

until such time that they become terminally ill, does not deny

them equal protection.

The second question is whether the right to assisted suicide

deprives people with terminal illnesses of a benefit that is

available to other individuals. Again, the answer is no. The

right being asserted here would give terminally ill individuals an

additional choice that they currently do not have. It would not

require them in any way to exercise that choice. It would not

deprive them of life. It would not deprive them of protection

from murder. It would not deprive them of state suicide

prevention services. In fact, it would not deprive them of

anything.

The ADA prohibits actions by or policies of public entities

that “exclude from participation in” or “deny the benefits of”

any program, service, or activity of a public entity or by which

persons are “subjected to discrimination by any such entity.” 42

U.S.C. § 12132. Again, the right being asserted does not deny

any benefit to any person with a disability, nor does it exclude

any person with a disability from participation in any state

program, service or activity.” The ADA was not intended to

* The one way in which the ADA may be applicable, however, is

with respect to individuals with terminal illnesses who are not capable

of self-administration of the lethal drug. Certain people with

disabilities, such as some people with quadriplegia, have physical

limitations which severely restrict or render impossible the ability to

self-administer drugs. Modern technology has resolved this issue for the

vast majority of these individuals through the development of assistive

devices that allow them to self-administer. However, to the extent that

(continued...)

preveut people with disabilities from having greater options than

other people, particularly when they are entirely free not to

exercise those options.

Moreover, the ADA was not intended to protect people

with disabilities from their own decisions. One form of discri-

mination against people with disabilities explicitly mentioned as

a basis for the ADA is “overprotective rules and policies." 42

U.S.C. § 12101(5). Terminally ill individuals have a particularly

strong liberty interest in not being “protected” by the state from

their own end of life decisions. The right to obtain physician

assistance to hasten their death is a significant benefit to them.

They do not want protection from this choice.

3. The Standard of Terminal Hiness Will Allow

States to Prevent People Who Are Not

Terminally Il from Ending Their Lives

With Physician Assistance

Some disability organizations that oppose assisted suicide

contend that this right inevitably will be expanded to people with

disabilities who do not have terniina! illnesses. There is no

reason this will occur. The requirement that the individual

seeking to end his or her life must have a terminal illness that

makes death imminent and inevitable is readily capable of

definition and implementation. Many states and model codes

define the term “terminal iliness.” Brief of Respondents

(Glucksberg) at 32.

The fact that there is no uniform definition for "terminal

illness" is of little consequence. At this stage, we need only

consider the broad parameters of the right. In the current cases,

9(...continued)

some of these individuals who are terminally ill are incapable of self-

administration even with an assistive device, the ADA would probably

require that the individual he permitted the assistance of his or her

physician in administering the drug. Such administration would be

entirely consistent with the active role that physicians currently play in

conducting abortions and in terminating life support systems.

all people with terminal illnesses are precluded from obtaining

the assistance of their physicians in ending their lives. This

blanket prohibition clearly violates the liberty rights of many

individuals who are, without any doubt, terminally ill. As long

as a state defines terminal illness within the bounds of

reasonableness, it may prevent people who fall outside those

bounds from obtaining assistance in dying.

Some opponents point to the Netherlands as proof that the

right to physician assisted suicide cannot be contained to people

with terminal illnesses. Any such comparison is misleading. In

the Netherlands, physician-assisted suicide is not allowed by

Statute, but physicians who adhere to official guidelines will not

be prosecuted for assisting patients who request assistance in

dying. However, those guidelines have never required that the

patient be terminally ill or that the patient’s suffering be

physical. Chris Docker, Euthanasia in Holland, 4 1 (1996)

< http://www.euthanasia.org/ dutch.html > .

Two recent studies of doctor-assisted death in the

Netherlands suggested that tolerance of the practice has not

produced the "slippery slope" leading to abuses which critics have

predicted. P.J. van der Mass, et al., Euthanasia, Physician-

Assisted Suicide and Other Medical Practices Involving the End of

Life in the Netherlands, 1990-1995, 335 N. Eng. J. Med. 1699

(Nov. 28, 1996); G. Van Der Wal et al., Evaluation of the

Notification Procedure for Physician-Assisted Death in the

Netherlands, 335 N. Eng. J. Med. 1706 (Nov. 28, 1996); M.

Angel, Euthanasia in the Netherlands ~ Good News? Or Bad?, 335

N. Eng. J. Med. 1676 (Nov. 28, 1996).

The situation in the Netherlands, therefore, provides no

support for the proposition that the right limited to terminally ill

individuals in our country will necessarily be ex panded.

4. The Standard of Voluntariness Will Allow

States to Ensure Only Competent

Individuals Who Choose to Hasten Death

With Assistance Are Allowed to Do So

Opponents of the right to die further assert that people with

disabilities will be induced to end their lives by others who

consider them inferior or a burden. However, the right asserted

here is based entirely on the voluntary choice of a competent

individual with a terminal illness to end his or her life. As

discussed above, the state is free to enact regulations to ensure

that the decision is made voluntarily by a competent adult who

was not subject to coercion or undue influence. Despite such

standards, opponents contend that this right will be extended to

incompetent individuals. They base this conclusion on case law

concerning the right to refuse life-sustaining medical interven-

tions. However, such expansion is by no means inevitable and

may be precluded by this Court’s decision.

The liberty right to assisted suicide is different from the

right to withdraw life support. While competent individuals in

both situations are similarly situated for purposes of equal

protection analysis, the right to withdraw life support is based

fundamentally on the common law right to be free from bodily

invasions. Cruzan, U.S. at 269. The courts have appropriately

found that, like competent individuals on life support, incom-

petent individuals have a right to be free from such invasions.

The right to assistance in dying is hased on the interest of the

terminally ill individual to control his or her life. Because the

right is based on the autonomy of the individual, it may be

limited to those individuals who are capable of autonomy—

competent adults.

5S. In the United States, the Right of

Terminally Ill Individuals to Choose Assisted

Suicide Will Never Be Converted into a

Right of the State to Authorize the Murder

of People with Disabilities

Some organizations that oppose physician assisted suicide

for competent patients who are dying and suffering contend that

this is the first step toward a society in which life is devalued and

people with disabilities are routinely killed by their doctors.

These groups point to the "euthanasia" program authorized by

Nazi Germany in the 1930s as a graphic example. There are

several serious problems with this analogy.

First, our country is not Nazi Germany; ours is a nation

dedicated to individual freedom in which the state is

constitutionally limited in depriving individuals of life, liberty or

property and the press is constitutionally empowered to inform

the citizenry of abuses of state power. The notion that the state

will have an interest in killing, or authorizing the killing of,

people with disabilities is ludicrous. One could just imagine the

TV coverage of such abuses on the evening news, or "60

Minutes", as well as the criminal and civil legal actions that

would inevitably follow.

Second, the Nazi program did not begin by granting a right

to assisted suicide for people with terminal illnesses. It began

with a determination by the state that people with disabilities are

inferior, have an inferior quality of life, and are therefore

disposable. That determination was in fact entirely consistent

with the goals and ideals of the Nazi party, and flourished when

the party flourished. By contrast, the notion that people with

disabilities may he killed without their consent is, and will always

be, abhorrent to the American public. The false notion that they

are inferior or necessarily have an inferior quality of life may

never in this country serve as a basis for any public policy,

particularly a policy that would deprive them of life, liberty or

property. The right being sought here is not in any way based on

any perceived inferiority, or inferior quality of life of, people

with terminal illnesses.

Third, and most important, the state in Nazi Germany gave

the medical profession unbridled power and authority to control

the lives and deaths of individuals with disabilities. In current

cases, Respondents and Amici seek to expand individual

autonomy and liberty, and to diminish the power and authority

of the state to make or authorize decisions concerning the life and

death of an individual. The implication of recognition of a right

to assisted suicide is, therefore, not that the state will have more

power to take the life of any of its citizens, with or without

disabilities, but rather that it will have less power.

Amicus Hugh Gallagher, author of By Trust Betrayed:

Patients, Physicians and the License to Kill in the Third Reich, and

one of the world’s foremost experts on the Nazi euthanasia pro-

gram, describes in his personal statement how the medical

establishment in Germany, at its request, was authorized by the

government to provide a "mercy" death for patients who in the

judgment of their physicians had "lives not worth living,” and

that the patients were given no choice over whether to live or die.

In indicating his support of the right to assisted suicide, he

concludes that:

The Nazi’s euthanasia program offers a horrible

example of how easy it is to go wrong when the state

or a group authorized by the state is allowed to

assume the power to judge the worth of another.

Ironically, this program is now being used hy some as

a justification to deny Americans in the terminal stage

of illness the right to die with assistance. In fact, the

German experience shows how important it is that the

autonomy of people with disabilities be honored in all

aspects of their lives. ...

The case of assisted suicide is quite different: the

patient with a terminal illness retains complete choice

over whether to live or to die. Neither the state nor

the physician may decide, based on their conceptions

of the individual’s quality of life; the individual must

assess his or her own quality of life. This is true

whether or not the individual has a disability...

To my mind, the issue comes down to control —

control over one’s Self. This control over Self is the

very heart of the disability rights struggle. In Nazi

Germany 60 years ago, people with disabilities were

deprived of all control over their Selves. They were

killed not because they sought death but because they

did not measure up to “quality of life" standards set

by their physicians with the concurrence of the state.

This must never happen here.

Personal statement of Hugh Gregory Gallagher.

C. DENIAL OF THE RIGHT TO ASSISTANCE IN

DYING WOULD DENY PEOPLE WITH

TERMINAL ILLNESSES THE EQUAL

PROTECTION OF THE LAWS

While the people with terminal illnesses in these cases are

not similarly situated to people who are not terminally ill for pur-

poses of the Equal Protection Clause, they are similarly situated

to competent people on life support who have clearly indicated

that they do not wish to live under such circumstances. Amici

agree with the decision of the Second Circuit that "New York

does not treat similarly circumstanced persons alike: those in the

final stages of terminal illness who are on life-support systems are

allowed to hasten their deaths by directing the removal of such

Systems; but those who are similarly situated, except for the

previous attachment of life-sustaining equipment, are not allowed

to hasten death by self-administering prescribed drugs." Quill,

80 F.3d at 729. See, personal statement of Amicus Barbara

Swartz.

D. A COMPASSIONATE SOCIETY THAT

RESPECTS PEOPLE WITH DISABILITIES

MUST NOT DENY TERMINALLY ILL

INDIVIDUALS THE RIGHT TO END THEIR

SUFFERING WITH ASSISTANCE

People with terminal illnesses have an immediate and urgent

liberty interest in the right to hasten their death with the

assistance of their physicians, whether or not they decide to

exercise that right. Diseases such as cancer and AIDS may cause

great pain and suffering, physical deterioration, and mental

anguish. A society that cares about these individuals and that

respects their autenomy must not deny them the opportunity to

shorten the period of their suffering and to die with dignity in a

safe and effective manner, with the assistance of their physicians.

1. The Decision of a Competent, Terminally Ii

Individual to End His or Her Life Mun Be

Assumed to Be Rational and Should Be

Respected

In our legal system, the decisions of competent individuals

are presumed to be rational." This presumption applies to the

decisions of people with disabilities, and any contrary assumption

by a state in establishing its policy would violate the ADA and

our national policy concerning people with disabilities.

Therefore, a state may not assume that the decision of a

competent terminally ill individual to end his or her life is

irrational and may not base a policy precluding assisted suicide

on such an assumption.

Yet, some disability rights advocates who oppose the right

to die seem to argue that people with disabilities are not capable

of autonomy for purposes of determining when and how they

should die when facing death with a terminal illness. The reason

for this apparent inconsistency with their basic philosophy is that,

they contend, many people with disabilities have so few resources

or viable options that they cannot make a rational choice to end

their lives. This inconsistency is unacceptable to Amici and the

majority of people with disabilities.

Amici are leaders in the disability community who are

committed to improving the lives of all people with disabilities

and to enhancing the options available to them. They agree that

our society often does not provide the support necessary for

people with disabilities to live independently in their communities.

However, the fact that the circumstances of the disabled

population are, as a whole, far less than ideal in this country,

and are likely never to be perfect, is no justification for depriving

these who have a terminal illness of the right to end their

suffering. These individuals are entirely capable of making

rational decisions. See personal statement of Susan Webb.

See, H.L. v. Matheson, 450 U.S. 398, 453 (1951); Davis v.

United States, 160 U.S. 469, 477 (1895).

As indicated above, between 66 and 90 percent of people

with AIDS support the right to assisted suicide. Significantly, the

study that found that more than half (S55 percent) have

considered this option for themselves, also found that the

strongest predictor of interest in physician assisted suicide was

having witnessed terminal illness in a family member or friend.

Breithart, supra at 242; Tindall, supra at 1069. This suggests

that these individuals know from personal experience the pain

and suffering a terminal illness can impose, and have concluded

that a person should have the right to end that agony if they so

choose. According to one observer:

Patients who are dying of cancer and wish to lessen

their suffering raise the concept of rational suicide.

They are competent to make decisions, feel that they

have completed their contribution to the world, and

are unlikely to contribute anything more in the few

weeks remaining. The disease is advanced and

advancing, and they understand and accept it.

Estimates of survival are in weeks rather than

months, and they are quite willing to relinquish the

possibility of another remission. They do not believe

in miracles. Indeed, their condition may be so pitiful

as to command the sympathy of family, friends and

caregivers alike. The only desire is to shorten the

process of dying and terminate the suffering.

Charlies F. McKhann, Js There a Role for Physician-Assisted

Suicide in Cancer? Yes, Important Advances in Oncology, 267,

269 (1996).

2. Recognition of the Right to Receive

Physician Assistance Will Serve to Ensure

Safety and Curtail Abuse

As was true with abortion in the years before this Court’s

decision in Roe v. Wade, the continued criminalization of

physician assisted suicide has not stopped many physicians from

aiding competent patients to end their suffering. See Jody B.

Gabel, Release From Terminal Suffering? The Impact of AIDS on

Medically Assisted Suicide Legislation, 22 Fla. St. U.L. Rev. 369,

372-73 (1994); L. Slome, J. Moulton, C. Huffine et al., Physi-

cians’ attitudes toward assisted suicide in AIDS, 5 J. AIDS 712-18

(1992); Dick Lehr, Death & the Doetor’s Hand, Increasingly,

Secretly, Physicians Are Helping the Incurably Ili to Die, Boston

Globe, Apr. 25, 1993 at 1.

In the face of legal prohibitions on physician assistance,

others are coming to the aid of the dying. One recent stwdy

surveyed 1139 critical care nurses in the United States, of which

71 percent practiced exclusively in intensive care units for adults.

Of that group, 17 percent reported requests from patients or

family members for euthanasia or assistance in suicide;" 16

percent of those asked, did so. An ad litional 4 percent stated

they had hastened a terminally ill patient’s death by pretending

to provide life-sustaining treatment ordered by a physician.

David Asch, The Role of Critical Care Nurses in Euthanasia and

Assisted Suicide, 334 N. Eng. J. Med. 1374-79 (May 23, 1996).

One California study of persons caring for loved ones with

AIDS found more than 10 percent of these caregivers reported

giving drugs to hasten their loved ones’ death. M. Coode, L.

Gourlay, L. Collette et al., Dying of AIDS: The Role of

Caregivers in Terminal Care and Hastened Death, Center for

AIDS Prevention Studies, University of California, San Francisco,

Paper presented at the 10th International Conference on AIDS,

Yokohama, Japan, August, 1994.

The ban on assisted suicide has simply ensured that persons

lacking the requisite training will continue to intervene on behalf

of those wishing to die. A desperate individual left to his or her

own devices may likewise be forced to resort to whatever means

are available to curtail suffering, such as "hanging, suffocation

or shooting." Jeremy A. Sitcoff, Death with Dignity: AIDS and

a Call for Legislation Securing the Right to Assisted Suicide, 29 J.

" David A. Asch, The Role of Critical Care Nurses in Euthanasia

and Assisted Suicide, 334 N. Eng. J. Med. 1374-75 (1996).

Marshall L. Rev. 677, 687 (1996). Without physician assistance,

the consequences may be other than intended, potentially

resulting in severe injury (e.g., coma, brain damage or increased

agony). "Often, the person who has made a rational choice to die

with dignity must accept his death in a totally undignified

manner". Id.

3. People with Terminal Ilinesses Should Not

Be Compelied to Die in a Drug-induced

Semi-Conscious Haze

The typical treatment of people with terminal illnesses that

cause great pain is to administer high levels of pain medication

to the individual, which typically puts him or her in a semi-

conscious state for an extended period of time. In administering

this medication, the physician is fully aware that there is a

significant probability of killing the patient. However, this is

considered sound medical practice, while assisting an individual

with the intent to help the individual end his or her life is a

criminal act.

Individuals should not be forced to spend their final days in

a drug-induced stupor to alleviate their pain. To many

individuals, the prospect of leaving this world in such a state of

prolonged semi-consciousness is a fate worse than death. In one

study of eighteen patients with cancer, one patient with prostate

cancer and bone metastases stated: “Who wants to suffer this

kind of pain? The medication puts me to sleep. As soon as I

wake up, there is the pain. If I can’t live free of pain, I’m not

living at all, simply existing.” McKhann, supra at 268.

With the option of physician assisted suicide, terminally ill

individuals may choose to remain fully conscious, recognizing that

they may end their suffering permanently at any time. This

option, therefore, allows them to spend their remaining days

saying good-bye to their friends and relatives and putting their

affairs in order. To them, and to most peopl., this dignified exit

is far preferable to having their loved ones look on hopelessly as

they slowly drift from drug-induced semi-consciousness to death.

4. Physician Assisted Suicide Allows People

with Terminal Ilinesses to Ending

Their Lives Until a Later Phase of Their

The recognition by people with terminal illnesses that they

can end their suffering often gives them the will to continue to

live. A strategy of many terminally ill individuals is to determine

the point in the disease process when it would be unbearable to

live and to decide to end their lives at that point. The control

that this gives them over their lives often allows them to sustain

a willingness to live. Many times, individuals reach the planned

point and extend their self-imposed limit to a later stage of the

disease. Often, they postpone the decision permanently, and die

from the disease. Mary Evangelisto, Death with Dignity:

End-of-Life Issues for the HIV/AIDS Patient, 34 J. Psychosoc.

Nurs. 45, 46 (1996).

IV. CONCLUSIONS

Issues of autonomy and self-determination are at the heart of

the struggle of people living with disabilities. They want to be

able to control the decisions that affect their lives. Like the

majority of Americans, they particularly do not want the state to

deprive them of such control during their final days, if they have

decided their suffering is intolerable. This decision must be made

by the individual in consultation with his or her loved ones and

personal physician. The state has no legitimate place interfering

in this profoundly personal decision making process.

The right of terminally ill individuals to contro! their deaths

is fundamental. There are few, if any, interests that are more

basic to individual liberty, and few, if any, circumstances in

which the state’s interest is less. Amici do not want to be

deprived of this right by the state simply hecause others

including others with disabilities, may not make this choice for

themselves or because of concern over potential abuse. They do

not want their disabilities to he used to justify the denial of this

right to others. The interests of a dying person to control the

remainder of his or her life far outweighs any state interests.

—

There is certainly no state interest sufficient to prohibit all people

with terminal illnesses from obtaining compassionate assistance

in dying from their physician.

Amici are committed to ensuring that the right to physician

assisted suicide is applied fairly and appropriately. They believe

that the vast majority of individuals who have available the

option of physician assisted suicide will choose to live, comforted

by the knowledge that the decision to continue to live is theirs

and theirs alone. The enormous interest in this case by members

of the disability community ensures that multitudes of disability

rights advocates, including Amici, as well as other concerned

individuals, will do everything they can to ensure this right is not

abused and to encourage terminally ill individuals to choose to

live.

The decision of the Ninth Circuit that people with terminal

illnesses have a liberty right in ending their lives with the

assistance of their physicians, and the decision of the Second

Circuit that denial of this right constitutes a denial of the equal

protection of the law, should be affirmed.

Andrew I. Batavia,”

Bryan R. Cleveland

Marina L. Fontani

Susan F. Dournaux

McDERMOTT, WILL & EMERY

2200 Miami Center

201 South Biscayne Boulevard

Miami, Florida 33131

Telephone: (305) 358-3500

“Counsel of Record

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that true and correct copies of the

foregoing were sent via U.S. mail to: William L. Williams,

Deputy Senior Assistant Attorney General, Transportation and

Public Construction Division, Office of the Attorney General, 905 t

Plum Street, Olympia, Washington 98504-01 13; Barbara Biilett,

Solicitor General State of New York, Office of the Attorney

General, The Capitol, Albany, New York 12224; and Marc F. APPENDIX

Scholl, Assistant District Attorney, Appeals 'Baypau, One Hogan

Place — Room 812, New York, 10014,;0n December 9, PERSONAL STATEMEDITS

1996. ~\, i OF

/ AMICI CURIAE

Andrew I. Batavia

Personal Statement of Evan A. Davis

I am an attorney admitted to practice in the State of New York and a member of

the Bar of this Court. I am a litigation partner with Cleary, Gottlieb, Steen and Hamilton in New

York City. In 1949, at the age of five, I contracted polio and since then have gotten around with

the help of braces, crutches and a wheelchair. For the last twenty years or so | have used the

wheelchair almost exclusively. Because I received an excellent education and because my

credentials are strong, this disability has not limited my practice.

I was asked to participate in this amicus brief by Professor Sylvia Law of New

York University Law School. She told me that various groups representing persons with

disabilities were filing amicus briefs in support of Petitioners urging that the interests of disabled

people would be disserved by affirmance of the decisions below. As it happened I had just spent

a good deal of time studying the legal issues now before this Court. With my knowledge of these

issues in mind | agreed to participate because | thought the Court needed to be informed that if

the issue before it is viewed narrowly, as it should be, affirmance would work absolutely no harm

to the interests of people with disabilities.

My interest in this Court not being misled is two fold. The narrow issue before

this Court is whether a terminally ill person whose death is inevitable and imminent has a right to

die with dignity. Thus this case concerns only circumstances where life is already ebbing out

and the natural process of death has already begun. In these circumstances | do not want myself

or any others to be deprived of an ability to die with dignity because of arguments about the

interests of people with disabilities that are not accurate or germane.

I also have an interest in this Court not being mislead because | believe it is

uniquely the obligation of this Court under the Fourteenth Amendment to decide what is the

proper scope of the citizen’s right to be left alone by government in regard to seeking a dignified

death. If this issue is left to the legislative process the result will likely be influenced by

religious views whose sincerity I respect but which are contrary to my sincerely held religious

views. Therefore I have a particularly strong interest in this Court making a sound decision on

solely secular grounds based on accurate information.

— ~~

Personal Statement of Hugh Gregory Gallagher

I am a writer and a historian. I am also a polio

quadriplegic as a result of an attack of polio in 1952. For more

than a decade, I have been studying and writing extensively on

disability rights issues. I am particularly interested in the

treatment that le with disabilities receive from the medical

system. I am considered one of the foremost experts on the

program authorized by Nazi Germany to "euthanize" over 200,000 of

its citizens with disabilities.

The Nazi's euthanasia program offers a horrible example of

how easy it is to go wrong when the state or a group authorized

by the state is allowed to assume the power to judge the worth of

another. Ironically, this program is now being used by some as a

justification to deny Americans in the terminal stage of illness

the right to die with assistance. In fact, the German experience

shows how important it is that the autonomy of peopie with

disabi ities be honored in all aspects of their lives. I do not

believe that le with cerminal illnesves should be denied the

option wf ending their lives in order to obtain reiief from

intolerable pain and suffering. This most personal of all

decisions should rest between the person and his God.

In my book,

+ I describe in detail how the

medical establishment in Germany, at its request, was authorized

by the government to provide a "mercy" death for patients who in

the judgment of their icians had "lives not worth living.*

The program was authorized by Hitler in 1939 and placed under the

direction of his personal physician. Although the program was

called “euthanasia,” the vast majority of the people killed were

not terminally ill or in great pain or even requesting death.

The killings began slowly, but soon enough, entire wards were

being provided “final medical treatment." The patients were

given no choice over whether to live or die.

The case of assisted suicide is quite different: the

patient with a terminal illness retains complete choice over

whether to live or to die. Neither the state nor the physician

may decide, based on their conceptions of the individual's

quality of life; the individual must assess his or her own

quality of life. This is true whether or not the individual has

a disability.

In our generation, great strides have been made to

welcome people with disabilities into society as equal members

with equal rights. For the first time, people with disabilities

have assumed control over their own lives, without fear of

sterilization, internment, segregation and ostracism, and the

denial to their rights to vote, hold property, enter legal

contracts, and obtain public education, transportation and

accommodation. Now should no more be denied the right to

obtain assistance in dying if they become terminally ill than

should anyone else.

Statement of Hugh Gregory Gallagher

Page Two

mind, the issue comes down to control -- control

over ante tak This control —— is = very heart of a

struggle. In Nazi Germany years + peop

Sith disabilities were deprived of all control over their Selves.

They were killed not because they sought death but because

did not measure up to “quality of life" standards set by their

physicians with the concurrence of the state. This must never

happen here.

In the United States today, we are debating whether an

individual in the terminal stages of an illness should retain

control over his/her Self and his/her personal concept of qiality

of life -- even to the point of death with dignity -- or whether

such control should be circumscribed by the state.

In own experience, it was this sense of control and

ene concenitent imeuhelne that 2 asule ant life should the

situation become unbearable, that kept me go through the

extraordinary pain and suffering that accompanies acute polio. I

will not turn over this control, or 1 decision to live

or die, to the state. That decision is mine and mine alone.

Hugh Gregory Gallagher

Nev 24 17496

Date

Personal Statement of Barbara Swartz, Esq., In Support of

Physician-Assisted Suicide

I have end-stage renal disease (ESRD) and have been

considered legally disabled for the past twelve years. For

eleven and a half years, I was a home hemo dialysis patient;

six months ago, I had a successful kidney transplant. But I

am more than a kidney patient. Hey pe f I ama

lawyer, a law professor and a lecturer in public health.

During these past twelve , I have been very active as a

volunteer in my national kidney organization.

Throughout my career, I have been a fighter for and

protector of human rights. I have worked for prisoners’

rights, women's rights and patients’ rights. A common theme

running through these various areas is my strong commitment

to the right of the individual to maintain her autonomy and

y~ ye In the area of patients’ rights, I believe in the

full and active participation of = ents in our own health

care decisions including end of life and death decisions. It

is in making these profoundly difficult decisions that the

right to individual aut becomes most meaningful.

Competent patients already have the legal right to refuse

treatment even if this decision lea@s to their death. In my

mind, there is little legal difference between this right

for a ician to —— @ person die with di ty, and the

opportunity for a physician to prescribe medication which a

competent person choose to self-administer even though

it too may lead to her death. In both cases, we are

discussing the means used, either passive or proactive, to

achieve the same end result. As a competent patient, I

believe pasesenseesy in my right to maximum participation in

= of the most intimate decisions that affects me: how !

I do not say that this is an uncomplicated issue and I

understand that honorable pecple may disagree on what

approach to take in cases of people wishing to die when they

are in the end stages of a terminal illness. Before a

physician consents to a patient's request for a lethal dose

of medication, I would want to ensure that a patient is

offered effective pain t and ropriate

logical assistance. Ideally, I would also like to

believe that there has been an active and ongoing dialogue

between the physician and the patient about this decision.

But this is a matter of effective regulation rather than a

strict prohibition of the practice. Ultimately, I believe

that the final decision about whether to live or die mst be

left to the patient.

I have always been actively involved in decision making

about my illness. From the onset of my kidney disease, I

had to make the decision about whether to go on dialysis or

not. I knew that a decision not to choose dialysis was a

decision to die. Every time I dialyzed, I made the decision

to choose life over death. I also had to decide whether to

put myself on the transplant list and then when a kidney was

offered to me, whether to accept the offer. Bach of these

decisions is more comparable to a competent person's right

to refuse treatment. However, I would that if I chose

in and suffering, and

to end my life because of unbearable ¥

I needed help, I would be able to call upon my physician to

assist me in dying with dignity. For me, the basic question

is whose life and death is it anyway?

Bonterra. Sunda, Eo,

November 30, 1996

SCATEMENT OF MICHAEL A ster

i am a thirty-three year old individual whe uses a

wheelc

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