# Amicus Curiae Brief — Vacco v. Quill

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385013_0768%3A57

## Record

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

## Text

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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 & 60. 0O4 08 60K OWE 5

M. Babst Battin & David J. Mayo, Suicide:
The Philosophical Issues (1980) .......... 5, 6, 8

Vv

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

vi
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.

2

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
I

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.

4

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).

5

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.

6

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).

© Id. at 373-74.

" 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).

7

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).

© See generally Julia Pugliese, Note, Don't Ask—Don't Tell: The Secret
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).

9

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.

10

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

12

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).

13

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.

fr

14

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)

15

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.”).

16

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).

17

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

19

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).

20

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.

21

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

22

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.

23

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

24

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.

25

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)).

26

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.

27

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

28

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.

29

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.

LS

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
v.
_Glucksberg
Vacco
v.

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

I.

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

1.

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

13

14

16

19

20

eS

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

21

24

25

26

28

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

ee

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)
......

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

vi

26

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. ™

2

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

ee

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).

10

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

12

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.

13

’
“

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

14

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.

15

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.

17

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 othe

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385013_0768%3A57. Public record. Not legal advice.