Petition for Writ of Certiorari — Washington v. Glucksberg

Supreme Court brief1997

Ask Donna

What actually matters in this document.

Text

r FPAiLE WM

96 LILO 319%.

No.

OFFICE OF THE CLERS

IN THE

SUPREME COURT

OF THE

UNITED STATES

OCTOBER TERM, 1996

STATE OF WASHINGTON, CHRISTINE O. GREGOIRE,

Attorney General of Washington,

Petitioners,

Vv.

HARCLD GLUCKSBERG, M.D.,

ABIGAIL HALPERIN, M.D., THOMAS A. PRESTON, M.D.,

and PETER SHALIT, M.D., Ph.D.,

Respondents.

ON PETITION FoR A WRIT OF CERTIORARI

To THE UNITED STATES COURT OF APPEALS

For THE NINTH CIRCUIT

PETITION FoR Writ OF CERTIORARI

CHRISTINE O. GREGOIRE

Attorney General

*WILLIAM L. WILLIAMS

Sr. Assistant Attorney General

WILLIAM BERGGREN COLLINS

Sr. Assistant Attorney General

*Counsel of Record

P.O. Box 40113

Olympia, WA 98504-0113

Telephone: (360) 753-4960

Attorneys for foaonsse

QUESTIONS PRESENTED

Is there a constitutionally protected liberty interest

under the Due Process Clause of the Fourteenth

Amendment in committing suicide, and if so, does

that interest include assistance in so doing?

If the answer to the foregoing question is in the

affirmative, is a State statute that infringes on the

protected liberty interest by prohibiting one person

from assisting another to commit suicide

nonetheless valid under the Due Process Clause

because it furthers legitimate State interests?

Is there a rational basis for distinguishing between

refusing life-sustaining medical treatment and

requesting life-ending medical intervention, so that

a State whose law allows the former but not the

latter does not violate the Equal Protection Clause

of the Fourteenth Amendment?

LIST OF PARTIES

The parties to the proceeding below were:

Petitioners: State of Washington and Christine O.

Gregoire, Attorney General of Washington, both of whom

were aligned as defendants/appellants below.

Respondents: Harold Glucksberg, M.D., Abigail

Halperin, M.D., Thomas A. Preston, M.D., and Peter

Shalit, M.D., Ph.D., all of whom were aligned as

plaintiffs/respondents below. Three individuals identified

only by pseudonyms were plaintiffs in the District Court

below, but died during the pendency of the proceedings and

are no longer parties to the litigation. A nonprofit

corporation, Compassion in Dying, was a plaintiff in the

District Court; however, its claims were not adjudicated by

the District Court order that prompted this appeal and it is

not a party to the appeal.

TABLE OF CONTENTS

QUESTIONS PRESENTED ..............++-. i

6 fa ii

a |

FE -rrrrr rrrreriiir |

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED ............55.- 2

U.S. Constitution, Fourteenth Amendment .... 2

Declaratory Judgment Act, 28 U.S.C. § 2201 .. 2

Washington Revised Code § 9A.36.060 ...... 3

STATEMENT OF THE CASE .............. 3

1. The Statutory Scheme At Issue ......... 3

2. The Proceedings Below .............-. 6

a. The District Court Opinion....... 6

REASONS FOR GRANTING THE PETITION .... 9

1. The Ninth Circuit’s Opinion

Conflicts With Established

Supreme Court Jurisprudence .......... 11

B- GED 0040 woewees decks &en 13

SS Fewer foe 16

c. The Appropriate Test .......... 17

2. The Ninth Circuit Due Process Conclusion

Conflicts With Those Of Other Appellate

Courts That Have Considered The Issue . 20

3. The Equal Protection Clause Does Not

Support The Conclusion Reached Below . 22

4. This Case Presents Important Issues

Of Public Policy And Federalism ........ 26

GE ccccessdacaceaaneuetaes 29

TABLE OF AUTHORITIES

Cases

Compassion in Dying v. Washington

49 F.3d 586 (9th Cir. 1995)........

Compassion in Dying v. Washington

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

Compassion in Dying v. Washington

850 F. Supp. 1454 (W.D. Wash. 1994). .... passim

Compassion in Dying v. Washington

___ F.3d __— (1996 WL 315922)

GG. TEUED co ccc cccccecs cee:

163 Cal. App. 3d 186,

209 Cal. Rptr. 220 (1984) .............0..

Bouvia v. Superior Court

179 Cal. App. 3d 1127,

225 Cal. Rptr. 297 (1986) .............04.

Bowers v. Hardwick

Gam Gu. TED GRRE cc ccc cccccccccceses

Brophy v. New England Sinai Hosp., Inc.

398 Mass. 417, 497 N.E.2d 626 (1986)

Collins v. Harker Heights

503 U.S. 115, 125 (1992) ............005 28

Cruzan v. Missouri Dep't of Health

497 U.S. 261, 280 (1990) .......... 5, 13-16, 19

Donaldson v. Lundgren

4 Cal. Rptr. 2d 59, 64,

2 Cal. App. 4th 1614

—< F § ) | UT 21

Eisenstadt v. Baird

GD Ge GP GD bho cccce te ro eecewre 12

Ferguson v. Skrupa

Jf ' & f Faeerrvrcrrrr yr ree 28

Foody v. Manchester Memorial Hosp.

482 A.2d 713 (Conn. Super. Ct. 1984) ........ 25

Hobbins v. Attorney General

205 Mich. App. 194, 518 N.W.2d 487 (1994),

aff'd, People v. Kevorkian, 447 Mich. 436,

481, 527 N.W.2d 714 (1994), cert denied,

Kevorkian v. Michigan, 115 S. Ct. 1795 (1995). . . 21

In re Gardner

534 A.2d 947 (Me. 1987) ............. 25, 26

In re Grant

109 Wn.2d 545, 747 P.2d 445 (1987) ...... 25, 26

Leach v. Akron Gen. Med. Ctr.

68 Ohio Misc. 1, 426 N.E.2d 809 (1980) ...... 25

vii

Matter of Farrell

108 N.J. 335, 529 A.2d 404 (1987) .......... 25

Matter of Quinlan

70 N.J. 10, 355 A.2d 647 (1976) ........ 25, 26

Matter of Storar

52 N.Y.2d 363, 438 N.Y.S.2d 266,

PPD ceocceceasdévcetedce’s 25

Moore v. City of East Cleveland

431 U.S. 494, S03 (1977) ... 2... we eee 11, 13

Planned Parenthood v. Casey

PP CPD ovcececcessdueves 12, 16, 17

Quill v. Vacco

80 F.3d 716 (2nd Cir. 1996) ...... 21, 22, 24, 25

Rasmussen v. Fleming

154 Ariz. 207, 741 P.2d 674 (1987)....... 25, 26

Reno v. Flores

2, & & | eres 11, 23

Roe v. Wade

re re 12, 16

State v. McAfee

259 Ga. 579, 385 S.E.2d 651 (1989) ......... 25

Staz v. Perlmutter

362 So. 2d 160 (Fla. Dist. Ct. App. 1978)...... 25

viii

Turner v. Safely

Ge Ge CED SoS bbe de dbedcci veobe< 12

United States v. Salerno

Ge as. PD 6 6 0 6 wo pow dec denedy 17-19

Washington v. Harper

Ge ee SD nc cle vied bck cbelo ddd 12

Williamson v. Lee Optical of Oklahoma

fi |. PPrrerrerrervreei. 28

Consitutions

es Ge, EE Ge oc cceeocceccleeees 2,3

Statutes & Regulations

Se SGD 66d oo bb 6 bo BS 6 See Be 8

Sp es DEED 6 6 Wc bbc Hohe Cw cb és 2, 6

Ps ED Gk bo tb ecedéce Sete encee 7

28 U.S.C. § 2201 (Declaratory Judgment Act) ... 2,3

i ) ) | ree eee 3

La. Rev. Stat. § 14:32.12

(as amended by La. Act of 1995, No. 384, § 1)

Model Penal Code § 210.5 ..........000505.

Wash. Rev. Code § 9A.36.060 ..........045.

Wash. Rev. Code § 70.122.100 .............

Wash. Rev. Code §§ 70.122.010-.120 .........

Washington Laws of 1975, ist Ex. Sess.,

ch. 249, § 9A.92.010 (214) ... 2.2... ee ee eee

Other Case Law

Rodriguez v. British Columbia (Attorney General)

Se Rf ere re

. F e- SF) =— TTT Te

Legislative Council’s Judiciary Committee,

Report on the Revised Washington Criminal

Code 133 (December 3, 1970) ........0000.

Michael Betzold, Appointment

Dee SEEN oR ek cca Wb a SERS

The Michigan Commission On Death And Dying,

Final Report (1994)... 0. occ eee ee

The New York State Task Force On Life

And The Law, When Death Is Sought:

Assisted Suicide And Euthanasia In

The Medical Context (1994) ............45.

en ee

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

The Petitioners respectfully pray that a writ of

certiorari issue to review the judgment and opinion of the

United States Court of Appeals for the Ninth Circuit, filed

March 6, 1996.

OPINIONS BELOW

The decision of the en banc panel of the United

States Court of Appeals for the Ninth Circuit' is reported

at 79 F.3d 790 (9th Cir. 1996). The Court’s Amended

Order* denying a request that the full court rehear the case

en banc, with dissenting opinions, is reported at__—w*F..3d

___ (1996 WL 315922) (9tm Cir. 1996). The decision of

the Ninth Circuit three judge panel’ is reported at 49 F.3d

586 (9th Cir. 1995). The decision of the United States

District Court for the Western District of Washington‘ is

reported at 850 F. Supp. 1454 (W.D. Wash. 1994).

JURISDICTION

The Court of Appeals’ opinion was filed and

judgment entered on March 6, 1996.° The jurisdiction of

' Compassion in Dying li, App. at A-1 to A-164. The copy of the

opinion reflects changes pursuant to the en banc panel's order

amending the opinion filed May 28, 1996. A copy of this order is

found in the appendix at page B-1.

2 Compassion in Dying 1, App. at C-1 to C-26.

3 App. at D-1 to D-27.

* App. at E-1 to E-29.

. App. at A-1.

this Court is invoked pursuant to 28 U.S.C. § 1254(1). By

order of May 14, 1996, the time for filing an application

for a writ of certiorari was extended to July 4, 1996.°

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

U.S. Constitution, Fourteenth Amendment

All persons born or naturalized in the

United States, and subject to the jurisdiction

thereof, are citizens of the United States and

of the state wherein they reside. No state

shall make or enforce any law which shall

abridge the privileges or immunities of

citizens of the United States; nor shall any

state deprive any person of life, liberty, or

property, without due process of law; nor

deny to any person within its jurisdiction the

equal protection of the laws.

Declaratory Judgment Act, 28 U.S.C. § 2201

(a) In a case of actual controversy within its

jurisdiction, except with respect to Federal

taxes other than actions brought under

section 7428 of the Internal Revenue Code

of 1986, a proceeding under section 505 or

1146 of title 11, or in any civil action

involving an antidumping or countervailing

duty proceeding regarding a class or kind of

merchandise of a free trade area country (as

defined in section 516A(f)(10) of the Tariff

Act of 1930), as determined by the

administering authority, any court of the

United States, upon the filing of an

® App. at F-1 to F-2.

appropriate pleading, may declare the rights and other legal

relations of any interested party seeking such declaration,

whether or not further relief is or could be sought. Any

such declaration shall have the force and effect of a final

judgment or decree and shall be reviewable as such.

(b) For limitations on actions brought with

respect to drug patents see section 505 or

512 of the Federal Food, Drug, and

Cosmetic Act.

Washington Revised Code § 9A.36.060

(1) A person is guilty of promoting a

suicide attempt when he knowingly causes

or aids another person to attempt suicide.

(2) Promoting a suicide attempt is a

class C felony.

STATEMENT OF THE CASE

The jurisdiction of the District Court was invoked

pursuant to 28 U.S.C. § 2201 and 42 U.S.C. § 1983.

Eight plaintiffs—three patients, four physicians, and a

nonprofit corporation—filed suit seeking a declaratory

judgment that Washington’s criminal statute prohibiting one

person from aiding another person to commit suicide

violates the Fourteenth Amendment of the United States

Constitution. Plaintiffs also sought to enjoin enforcement

of the statute.

1. The Statutory Scheme At Issue

Washington’s statute prohibiting one person from

assisting = it suicide was initially

adopted in 1854 by the first Territorial Legislature. The

prohibition has remained in effect throughout the State’s

history, although the specific language of the statute has

varied with different codifications of the State’s criminal

code.’

The 1975 revision of the criminal code retained the

prohibition against assisted suicide while at the same time

removing criminal penalties from the act of attempting

suicide.* The legislative committee whose comprehensive

study led to the revision explained:

“[W]hatever may be said of suicide itself, it

seems clear that the introduction into the

situation of another person who actively

promotes the suicide could well increase the

instability or irrationality of the potential

suicide, affecting his judgment or emotional

outlook. . . . Whatever the thoughts of a

potential suicide may be, it is almost

inconceivable that the threat of a two year

prison sentence if he is unsuccessful in his

attempt is going to deter his act. Moreover,

it seems clear that such a person is in all

probability a troubled, disturbed human

being who need[s] psychiatric care or some

other counseling service. His condition

could only be aggravated by being branded

a convicted felon and sent to [prison] for

7 Copies of the various legislative enactments, including the statute

currently in effect, are found in the appendix at pages G-1 to G-3.

® See Washington Laws of 1975, Ist Ex. Sess., ch. 249,

§ 9A.92.010 (214) (repealing former Wash. Rev. Code § 9.80.020,

which was originally enacted by Washington Laws of 1909, ch. 249,

§ 134).

Shem

OO et Se EEE mm —- -

Te ee

two years. Thus no attempted suicide crime

is defined by this [proposed] code.”®

In 1991, Washington’s voters rejected Initiative 119,

which, had it passed, would have authorized a form of

physician aid in dying."° Its enactment also would have

presumably created an implied exception to the crime of

promoting or aiding a suicide, at least for conduct

explicitly authorized by the initiative. The initiative did not

expressly amend or repeal the assisted suicide statute at

issue here.

Almost all other States also prohibit assisting a

suicide, either by statutes or by case law.'' These

statutes—generally considered part of the States’ homicide

laws—have been recognized by this Court as evidencing the

States’ interest in protecting and preserving human life.’

® Legislative Council’s Judiciary Committee, Report on the

Revised Washington Criminal Code 153 (December 3, 1970).

10 A copy of the initiative is found in the appendix at pages H-1

to H-10. The initiative was prepared in standard legislative drafting

form, reflecting. changes in the existing statutory language by

underlining language to be added and striking language to be deleted,

enclosing the latter in double parentheses.

'! In his dissent from the en banc panel decision, Judge Beezer

catalogued forty-four States that condemn assisted suicide. See App.

at A-135 to A-136, n.10-13. The list is extensive, but not exhaustive,

because States are continuing to grapple with the issue. Judge Beezer's

list does not include, for example, the 1995 Louisiana statute

prohibiting “criminal assistance to suicide”. See La. Rev. Stat.

§ 14:32.12 (as amended by Louisiana Acts of 1995, No. 384, § 1. It

should also be noted that the Model Penal Code includes a prohibition

against aiding suicide. Model Penal Code § 210.5.

!2 Cruzan v. Missouri Dep’t of Health, 497 U.S. 261, 280 (1990).

2. The Proceedings Below

a. The District Court Opinion

On cross motions for partial summary judgment, the

District Court held that “a competent, terminally ill adult

has a constitutionally guaranteed right under the Fourteenth

Amendment to commit physician-assisted suicide.””

Finding that Washington’s statute prohibiting assisted

suicide places an “undue burden” on the exercise of that

right, the District Court concluded that the statute violates

the Due Process Clause of the Fourteenth Amendment."

The District Court also held that persons who

depend on life support systems to remain alive are situated

similarly to those who are terminally ill but able to

continue living without life support, and that the refusal or

withdrawal of life support by the former is “equivalent” to

assisted suicide." The District Court concluded that by

allowing withdrawal or withholding life support, but

prohibiting assisted suicide, Washington law violates the

Equal Protection Clause as well."° Based on these

conclusions, the District Court declared the statute

unconstitutional ."’

The District Court granted final judgment declaring

the statute invalid pursuant to Fed. R. Civ. P. 54(b) and 28

U.S.C. § 2201, addressing only the claims of the patient

3 App. at E-16 (footnote omitted).

* App. at E-24.

'7 App. at E-28 to E-29.

Petitioners appealed to the Court of Appeals

pursuant to 28 U.S.C. § 1291. A majority of a three judge

panel of the Court of Appeals reversed the District Court,

finding that the “decision of the district court lacks

foundation in recent precedent [and] in the traditions of our

nation.”*' Even assuming the existence of a liberty

"8 App. at I-1 to 1-3.

' App. at E-28.

» App. at E-29.

2! Compassion in Dying 1, App. at D-13.

2 App. at D-14.

® App. at D-19.

“between actions taking life and actions by which life is not

supported.” Senior Judge Wright dissented.»

c. En Banc Review

Respondents’ suggestion for en banc review was

granted and a limited en banc panel was convened

pursuant to 28 U.S.C. § 46(c) and Ninth Circuit Rule 35-3.

Following oral argument, 3 “jority of the en banc panel

“clarified” the scope of the Disarict Court opinion and then

affirmed.” Rather than declaring the entire statute

invalid, the en banc panel held that the “or aids” portion of

the Washington statute violates the Due Process Clause

when applied to the prescription of medications to assist

adult persons who are mentally competent and terminally

itl in ra? ‘cide.

Three judges dissented. Judge Beezer concluded

that mentally competent, terminally ill adults have a liberty

interest in committing physician-assisted suicide, but that

the State’s interests “are sufficiently strong to sustain the

constitutionality of RCW 9A.36.060 as applied to plaintiff's

asserted liberty interest.""” Judges Fernandez and

Kicinfeld, in separate opinions, concurred with Judge

* App. at D-18.

% App. at D-20 to D-27.

2° Compassion in Dying v. Washington, 62 F.3d 299 (9th Cir.

1995).

2? Compassion in Dying Ul, App. at A-19.

8 App. at A-19 to A-20.

? App. at A-160.

Beezer, but added that they found no constitutionally

protected interest in committing suicide.”

a. Posi-Decision Proceedings

The Court of Appeals’ sua sponte suggestion for

rehearing before the full court failed to receive a majority

of the votes of the non-recused active judges of the Ninth

Circuit.*" Pursuant to orders of this Court, the Ninth

Circuit’s mandate has been stayed pending disposition of

this petition.”

REASONS FOR GRANTING THE PETITION

Petitioners agree with the opening two sentences of

the en banc panel opinion:

“This case raises an extraordinarily

important and difficult issue. It compels us

to address questions to which there are no

casy or simple answers, at law or

otherwise.”

Citing such diverse authorities as Plato,”

Shakespeare, and the Harris Poll,” a majority of the

(Kleinfeld, J., dissenting).

*! App. at C-1. .

® App. at K-1 to K-2.

® App. at A->.

* App. at A-41.

3 App. at A-75.

Ninth Circuit en banc panel held that mentally competent,

terminally ill adult patients have interests protected under

the Due Process Clause of the Fourteenth Amendment and

that these interests include a liberty interest in obtaining

physician assistance in ending their lives.

At first blush, the Ninth Circuit appears to have

narrowed the scope of the District Court’s decision. Rather

than declaring the entire statute invalid, the ruling by its

terms applies only to the “or aids” provision, and then only

to circumstances involving physician prescription of

medications for terminally ill patients.”’

On closer reading, however, it becomes clear that

the Ninth Circuit ruling is in many respects much broader

than that of the District Court. Thus, not only does it

apply to physicians, but also to other health care workers,

family members, and friends.“ Though the purported

liberty interest is described in terms of avoiding pain, the

en banc panel suggests that the desire to avoid medical bills

may be sufficient to implicate constitutional protection.”

Nor is the Ninth Circuit decision limited to those who are

mentally competent: “[A] decision of a duly appointed

surrogate decision maker is for all legal purposes the

decision of the patient himself.“ Finally, the Ninth

Circuit decision telegraphs the possibility that in future

cases the “right to die” may expand to “other forms of life-

*” App. at A-19 to A-20.

8 App. at A-116, 0.140.

” App. at A-87.

ending medical assistance, such as the administration of

drugs by a physician” —i.ec., active euthanasia.*'

constitutional protection to apply to those liberties

“‘implicit in the concept of ordered liberty [such that]

neither liberty nor justice wouid exist if [they] were

sacrificed.’"“* In an alternative formulation, this Court

described interests entitled to constitutional protection as

those that are “deeply rooted in this Nation’s history and

constitutionally protected, this Court has looked not to

broad categories of activities, or even to the ends the

activities seek to accomplish, but rather to the specific

conduct at issue in the case before the Court. As the Court

has recently cautioned, “‘[s)ubstantive de process’ analysis

must begin with a careful description of the asserted

right” .“

*' App. at A-100; see also A-30, n.15 (“The constitutionality of

prohibiting physicians from administering life-cending drugs to

terminally ill persons is not before us.”).

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

® Moore v. City of East Cleveland, 431 U.S. 494, 503 (1977).

“ Reno v. Flores, 507 U.S. 292, 302 (1993) (citing Collins v. City

of Harker Heights, 503 U.S. 115, 125 (1992)).

Thus, for example, this Court has concluded that

marriage and the use of contraceptives” are

the end of controlling the makeup of one’s family. But

other means to that end—polygamy and infanticide, for

example—are not the subject of constitutional protection.

Similarly, liberty interests in refusing unwanted

medical treatment’’ or having access to abortion

services“ have not been transformed to a broader liberty

interest in controlling all activities affecting one’s body,”

an end that could include prostitution and recreational drug

use.

Disregarding this cautionary approach, the Ninth

Circuit majority took the opposite approach. Its inquiry

was not limited to the more narrow issue before

it—whether there is a liberty interest in committing suicide

that includes assistance in doing so. Instead, the Ninth

Circuit addressed the broader question of “whether there is

a liberty interest in determining the time and manzer of

one’s death,” or “the right to die.” As Judge Reinhardt,

“ Turner v. Safely, 482 U.S. 78 (1987).

Eisenstadt v. Baird, 405 U.S. 438 (1972).

*” See, ¢.g., Washington v. Harper, 494 U.S. 210 (1990).

“ Roe v. Wade, 410 U.S. 113 (1973); Planned Parenthood v.

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

The Roe Court declined an invitation to rule “that one has an

unlimited right to do with one’s body as one pleases.” Roe, 410 U.S.

at 154.

writing for the majority, explained: “[I]t is the end and not

the means that defines the liberty interest.”*!

The Ninth Circuit’s conclusion departed from this

Court’s jurisprudence by selectively reading fragments of

the Cruzan and Casey decisions without reference to their

holdings or the larger context in which they were decided.

It then compounded its error by applying the wrong test.

a. Cruzan

In Cruzan v. Missouri Department of Health,® this

Court considered whether there were constitutional

limitations on the procedural requirements a State could

impose prior to granting a request that artificial life support

be withdrawn from a comatose patient who had no hope of

recovery.

The Cruzan Court acknowledged that its prior

decisions recognized a liberty interest in refusing unwanted

medical treatment.*» The Court further assumed, but

specifically did not decide, that withdrawal of mechanically

administered nutrition and hydration was encompassed

within such a liberty interest.*

The Cruzan Court then held that Missouri's

imposition of procedural safeguards to assure that such a

$1 Id.

*? Cruzan v. Missouri Dep't of Health, 497 U.S. 261 (1990).

> Cruzan, 497 U.S. at 278 (1990). Given that providing

unwanted medical treatment without consent was a tort at the common

law, it is difficult to argue that such a liberty interest is not “deeply

ee ey ae SUED Moore, 431 U.S. at

* Cruzan, 497 U.S. at 279.

decision was made voluntarily did not violate the

Fourteenth Amendment.* Such procedural safeguards

were justified on the basis of at least two important State

interests—preserving life, and protecting against undue

influence or abuse.™

With respect to the State’s interest in preserving

life, the Cruzan Court noted that:

“As a general matter, the States—indeed, all

civilized nations—demonstrate their

commitment to life by treating homicide as

a serious crime. Moreover, the majority of

States in this country have laws imposing

criminal penalties on one who assists

another to commit suicide.”*’

The Cruzan Court rejected the notion that a State’s

interest in protecting and preserving an individual's life

varies proportionately to the quality of that life:

“[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[.)”™*

The Ninth Circuit turned Cruzan on its head. Even

though the Cruzan Court only assumed a liberty interest in

refusing artificial food and hydration, the en banc panel

5 id. at 283.

7 Id. at 280.

58 id. at 282.

concluded that Cruzan “necessarily recognizes a liberty

interest in hastening one’s own death.”*

The Ninth Circuit opinion acknowledged the Cruzan

Court’s admonition that “the state’s interest in preserving

life may be unqualified, and may be asserted regardless of

the quality of the life or lives at issue." But it

nonetheless concluded that the “strength [of the state’s

interest] is dependent on relevant circumstances, including

the medical condition . . . of the person whose life is at

stake. ”*!

The en banc panel majority does not disclose how,

under its formulation, a State legislature is to assess the

strength of the State’s interest in protecting life in

individual situations without making “judgments about the

‘quality’ of life that a particular individual may

enjoy”“—precisely the judgments that the Cruzan Court

said a State is not required to make.

Finally, the Ninth Circuit decision converted

Cruzan’s approval of a State’s procedural safeguards

surrounding end of life decisions to a purported holding

that “the state could not prohibit” such decisions

altogether.” Regardless of how this Court might decide

that question—were it presented—nothing in the Cruzan

opinion suggests that it was presented or answered in the

* App. at A-62 (footnote omitted).

*! /d. (emphasis in original).

® Cruzan, 497 U.S. at 282.

® App. at A-59, n.67; see also A-104.

Cruzan case. This conversion of what “may” be done into

what “must” be done is precisely the kind of sophistry that

this Court criticized in Cruzan.™

b. Casey

The Ninth Circuit also misapplied this Court’s

holding in Planned Parenthood v. Casey.“ The issue in

that case was whether to narrow or overturn the holding in

Roe v. Wade™ that a woman’s decision to terminate a

pregnancy was constitutionally protected. In Casey, a

majority of the Court concluded that “the essential holding

of Roe v. Wade should be retained and once again

reaffirmed.”*

The Ninth Circuit decision below expanded the

Casey holding into a reformulation of the standard by

which the existence of constitutionally protected liberty

interests are to be determined. It read introductory

language describing a category of previously recognized

liberty interests as a pronouncement that any activities

* Two prior Supreme Court decisions held that a State may

require that parents make certain decisions on behalf of their minor

children. Apparently, Ms. Cruzan’s parents contended that these

decisions stood for the proposition that a State must recognize parental

decisionmaking. The Cruzan Court noted that “petitioners would seek

to tum a decision which allowed a State to rely on family

recognize such decisionmaking. But constitutional law does not work

that way.” Cruzan, 497 U.S. at 286.

% 505 U.S. 833 (1992).

®” Casey, 505 U.S. at 846.

ee oe

falling within the grammatical construct of this

categorization is now subject to constitutional protection.“

Such a reading ignores the context in which Casey

was decided, its solid grounding in the doctrine of stare

decisis, and the following explicit language in Justice

O’Connor’s opinion:

“Abortion is a unique act. [In the abortion

context] the liberty of the woman is at stake

in a sense unique to the human condition

and so unique to the law.”®

c. The Appropriate Test

The Ninth Circuit en banc panel expressly held “

the “‘or aids’ provision of [the] Washington statute .

unconstitutional as applied to terminally ill pond

adults who wish to hasten their deaths with medication

prescribed by their physician.””

By attempting to limit its holding to a single

category of those subject to the statute, the Ninth Circuit

finessed the test announced in United States v. Salerno”

for determining facial” challenges to statutes under the

® See generally, App. at A-54 to A-58.

® Casey, 505 U.S. at 852 (emphasis added).

7° App. at A-113 to A-114 (emphasis added). As noted above at

pages 10-11, the import of the decision may be much broader.

7! 481 U.S. 739 (1987).

7 The District Court analyzed Respondents’ complaint as

challenging the statute on its face. App at E-16 to E-20. On appeal,

Respondents re-framed their challenge, attacking the statute “as

applied” to the group for whom they advocate. Both they and the

—~

Due Process Clause, i.e., whether there is “no set 0

circumstances . . . under which the Act would be

valid.” The Salerno Court pointed out that “we have

not recognized an ‘overbreadth’ doctrine outside the limited

context of the First Amendment.””

The Ninth Circuit attempted to defend its approach

by acknowledging that ‘“[djeclaring a statute

unconstitutional as applied to members of a group is

atypical but not uncommon.” However, the two cases

it cites do not support this proposition. The first”

involved a statute purporting to authorize government

conduct that violated the Fourth Amendment. It was the

conduct, and not the statute, that was at issue. The

second” was a First Amendment case; its holding clearly

was consistent with the “overbreadth” doctrine recognized

by the Salerno Court as an exception to the general rule.

The Ninth Circuit instead applied its own version of

a balancing test, relying on Cruzan and two cases cited by

Ninth Circuit appear to agree that the statute serves legitimate State

interests in all other circumstances to which it applies—i.e., situations

involving those who are mentally or emotionally disturbed, those not

terminally ill (however defined), and those who, though mentally

competent and terminally ill, wish to live.

” Salerno, 481 U.S. at 745.

™ Id.

3 App. at A-20, n.9.

7 Wisconsin v. Yoder, 460 U.S. 205 (1972).

the Cruzan Court.” Alli three of these cases involved the

application of State law to particular fact situations

At issue in the instant case is a legislative judgment

about the appropriate scope of the Washington enactment,

not its application to particular individuals. Labeling this

case as involving a challenge to the statute “as applied” is

a misnomer.

State legislatures must have the discretion to assess

the needs of various segments of their respective populaces,

balance competing interests, and craft legislation that

reflects that balance, so long as the enactment serves a

legitimate purpose as to at least some of those to whom it

is addressed.

It is the essential nature of this legislative process

that the interests of some are subordinated to further what

the legislature deems to be a greater benefit to others or to

society as a whole. As this Court ha; recently noted:

“Even laws enacted for broad and ambitious

purposes often can be explained by reference

to legitimate public policies which justify the

incidental disadvantages they impose on

certain persons.””

Application of the Salerno rule to cases such as

this—regardless of the label applied to them—allows States

to continue this essential legislative function, so long as the

choices they make further legitimate State interest in at

78 Youngberg v. Romeo, 457 U.S. 307 (1982), and Mills y.

Rogers, 457 U.S. 291 (1982), cited in Cruzan, 497 U.S. at 279.

7? Romer v. Evans, __U.S. _, 116 S. Ct. 1620, 1628 (1996).

least some of the circumstances to which they are

addressed

This Court should grant certiorari to correct the

Ninth Circuit’s erroneous reading of its prior decisions and

to give guidance as to the appropriate test to be applied

when statutes of general application are challenged under

the Due Process Clause.

2. The Ninth Circuit Due Process Conclusion

Conflicts With Those Of Other Appellate Courts

That Have Considered The Issue

The Ninth Circuit is the only appellate court in this

or any other country™ to hold that a statute prohibiting

assisted suicide violates the Due Process Clause. It stands

in conflict with decisions of State appellate courts in

Michigan and California, and with a recent decision of the

Second Circuit.

The Michigan Supreme Court, in a series of related

cases involving the well-known Dr. Kevorkian,"' affirmed

the Michigan Court of Appeals in rejecting the argument

that a State ban on assisted suicide violates the Due Process

Clause:

“[T)he right to commit suicide is neither

implicit in the concept of ordered liberty nor

deeply rooted in this nation’s history and

7 of the Canadian Charter of Rights and Freedoms, a provision that

parallels the Due Process Clause, mandates allowing assisted suicide.

Rodriguez v. British Columbia (Attorney General), 3 S.C.R. 519

(1993).

8! For a detailed account of the activities of Dr. Kevorkian—the

so-called suicide doctor—see Michael Betzold, Appointment With Dr.

Death (1993).

tradition. It would be an impermissibly

and from the principles that underlie that

tradition, to declare that there is such a

fundamental right protected by the Due

Process Clause.”™

This Court denied certiorari.” The California Court of

Appeals has also rejected the notion that the Due Process

Clause protects a liberty interest in assisted suicide.

The most recent appellate court in this country to

consider the issue is the Second Circuit Court of Appeals,

which also declined to find that a State prohibition against

assisted suicide violates the Due Process Clause.”

(1994). The Michigan Supreme Court reversed the holding of the

Michigan Court of Appeals that the statute at issue had been enacted in

violation of procedural requirements of the Michigan Constitution, but

upheld the Court of Appeals’ alternative holding that the statute did not

violate the Due Process Clause. See Hobbins v. Attorney General, 205

Mich. App. 194, 518 N.W.2d 487 (1994).

™ “In the case of assisted suicides, however, the state

has an important interest to ensure that people are not

influenced to kill themselves. The state's interest

must prevail over the individual because of the

difficulty, if not the impossibility, of evaluating the

motives of the assister or determining the presence of

undue influence.”

Donaldson v. Lundgren, 4 Cal. Rptr. 2d 59, 64, 2 Cal. App. 4th 1614

(Cal. App. 2d Dist. 1992).

® Quill v. Vacco, 80 F.3d 716 (2d Cir. 1996) (Petition for Cert-

iorari pending). The Quill court’s holding that New York statutes similar

to Washington's violate the Equal Protection Clause is discussed below.

“The right to assisted suicide finds no

cognizable basis in the Constitution’s

language or design, even in the very limited

cases of those competent persons who, in

the final stages of terminal illness, seek the

right to hasten death.”™

In short, the Ninth Circuit is the only appellate court

to conclude that a statute prohibiting assisting a suicide

violates the Due Process Clause.

This Court should grant certiorari to resolve the

conflict created by the erroneous decision below.

3. The Equal Protection Clause Does Not Support

The Conclusion Reached Below

The District Court advanced the Due Process Clause

and the Equal Protection Clause as alternative bases for

concluding that the Washington statute is

unconstitutional.” The panel decision rejected both.”

The Ninth Circuit en banc panel, having concluded

that the statute violates the Due Process Clause, ostensibly

did not consider the equal protection prong of the District

Court’s analysis.”

aad App. at E-28.

* Compassion in Dying 1, App. at D-18 to D-19.

® App. at A-115. Even though not relied on by the en banc

in connection with this Petition For Certiorari as Respondents “may

legitimately defend their judgment on any ground properly raised

below.” Reno, 507 U.S. at 300, n.3 (1993).

oe,

A closer reading of the opinion below reveals,

however, that equal protection principles played an integral

part in its due process analysis. This is most apparent in

the en banc panel's assessment of the strength of

Washington's interest in enforcing the statute in individual

situations involving the terminally ill, That analysis is

based largely on the existence of Washington's Natural

Death Act,” a statute authorizing the withholding or

withdrawing of life support from terminally ill persons in

some circumstances. According to the Ninth Circuit

majority:

“In adopting the statute, the Washington

legislature necessarily determined that the

State’s interest in preserving life is not so

weighty that it ought to thwart the informed

desire of a terminally ill, competent adult to

refuse medical care.”*'

The court then proceeded from this premise to a

conclusion that Washington’s interests in prohibiting

assisted suicide were equally weak:

® Wash. Rev. Code §§ 70.122.010-.120.

9! App. at A-66. ~The Ninth Circuit majority did not explain why

the Natural Death Act could not simply be viewed as a legislative

choice among many competing interests in the difficult circumstances

to which the Natural Death Act is addressed. Nor did the majority

explain how its assessment of legislative intent could be squared with

the following explicit language from the Natural Death Act:

Nothing in this chapter shal! be construed to

condone, authorize, or approve mercy killing, or to

permit any affirmative or deliberate act or omission

to end life other than to permit the natural process of

dying.

Wash. Rev. Code § 70.122.100.

“[W]e see no ethical or constitutionally

cognizable difference between a doctor's

pulling the plug on a respirator and his

prescribing drugs which will permit a

terminally ill patient to end his own

life. . . . [WJe find the state’s interests in

preventing suicide do not make its interests

substantially stronger here than in cases

involving other forms of death-hastening

medical intervention. To the extent that a

difference exists, we conclude that it is one

of degree and not of kind.””

The equal protection analysis implicit in the Ninth

Circuit's conclusion was explicitly the basis for the Second

Circuit’s recent decision that two New York laws

substantially similar to the Washington statute were

invalid.” According to the Second Circuit, “New York

does not treat similarly circumstanced persons alike”™ and

the distinction is “not rationally related to any legitimate

state interest.”*

This conclusion was predicated on the same two

flawed premises underlying the District Court’s equal

protection analysis in the instant case—that persons who

depend on life support systems to remain alive are situated

similarly to those who are able to eat, drink, and breathe

® App. at A-82.

® Quill v. Vacco, 80 F.3d 716 (2d Cir. 1996) (Petition For

* Id. at 729.

% id. at 731.

on their own; and that refusing or withdrawing life support

by the former is “equivalent” to assisted suicide.”

Other courts that have addressed the issue of

withholding or withdrawing life-sustaining treatment,

including artificial hydration and nutrition, have reached

the opposite conclusion. Most of these cases recognized

the difference between refusing unwanted medical treatment

and suicide, the act of refusing life itself.”

Consider the following examples:

The Washington State Supreme Court:

“We emphasize that we are not

endorsing suicide or euthanasia.”™

% App. at E-18. The District Court's analysis was also predicated

on the erroneous proposition that the “strict scrutiny” test applied to the

statute. App. at E-25. The Quill Court recognized, correctly, that

Statutes not implicating fundamental rights or involving suspect

classifications are to be overturned only if there is no rational basis for

the statutory classification. Quill, 80 F.3d at 727.

” See, e.g., Rasmussen v. Fleming, 154 Ariz. 207, 218, 741 P.2d

674 (1987); Bouvia v. Superior Court. 179 Cal. App. 3d 1127, 1144,

225 Cal. Rptr. 297 (1986); Bartling v. Superior Court of Los Angeles

(Glendale Adventist Med. Cir.), 163 Cal. App. 3d 186, 196, 209 Cal.

Rptr. 220 (1984); Foody v. Manchester Memorial Hosp., 482 A.2d

713, 720 (Conn. Super. Ct. 1984); Staz v. Perlmutter, 362 So. 2d 160,

162-63 (Fla. Dist. Ct. App. 1978); State v. McAfee, 259 Ga. 579, 385

S.E.2d 651, 652 (1989); Im re Gardner, 534 A.2d 947, 955-56

(Me. 1987); Brophy v. New England Sinai Hosp., Inc., 398 Mass. 417,

497 N.E.2d 626, 638 (1986); Matter of Quinlan, 70 N.J. 10, 355 A.2d

647 (1976); Matter of Farrell, 108 N.J. 335, 529 A.2d 404, 411

(1987); Matter of Storar, 52 N.Y .2d 363, 438 N.Y .S.2d 266, 273, 420

N.E.2d 64, 71, 0.6 (1981); Leach v. Akron Gen. Med. Ctr., 68 Ohio

Misc. 1, 426 N.E.2d 809, 815 (1980); Jn re Grant, 109 Wn.2d 545,

563, 747 P.2d 445 (1987).

% In re Grant, 109 Wn.2d at 563.

The New Jersey Supreme Court:

“We would see, however, a real

distinction between the self-infliction

of deadly harm [suicide] and a self-

determination against artificial life

support... ."”

The Arizona Supreme Court:

“Asserting the right to _ refuse

medical treatment is not tantamount

to committing suicide.”'®

The Maine Supreme Court :

“[A patient’s] decision not to receive

[medical procedures], far from

constituting suicide, is a choice to

allow to take its course the natural

dying process set in motion by his

physiological inability to chew or

swallow.”'*!

In short, the equal protection analysis that is explicit

in Quill and implicit in the en banc panel decision is at

odds with virtually every appellate court decision

addressing end of life issues.

4. This Case Presents Important Issues Of Public

Policy And Federalism

This case is important because its subject

matter—physician assisted suicide—is hotly debated in

® In the Matter of Quinlan, 355 A.2d at 665.

109 Rasmussen v. Fleming, 154 Ariz. at 218.

10! In re Gardner, 534 A.2d at 955-56 (citations omitted).

hospital corridors and legislative halls across the nation. A

itutional “right to die”—if it exists—has implicati

for every American.

Two States—Michigan and New York—have

commissioned studies of the assisted suicide issue, each

producing thoughtful analyses of the complex set of

that the subject evokes."* The fact that these analyses

arrived at opposite conclusions evidences the complexity of

the issue.

But this case has implications far beyond the subject

of assisted suicide. The Ninth Circuit’s reasoning, if

allowed to stand, portends a substantially redefined

whose legislatures have historically been viewed as the

appropriate venue in a democratic society for resolving

important issues of social policy.

This Court has repeatedly cautioned that federal

judicial review of State legislation under the Fourteenth

Amendment is limited to assuring that it is rationally

related to legitimate State interests." As this Court

recently noted:

'®@ The New York State Task Force On Life And The Law, When

Death Is Sought: Assisted Suicide And Euthanasia In The Medical

Context (1994); The Michigan Commission On Death And Dying, Final

Report (1994).

1 See, ¢.g., Williamson v. Lee Optical of Oklahoma, 348 U.S.

483 (1955); Ferguson v. Skrupa, 372 U.S. 726 (1963) (“The [state]

statute may be wise or unwise. But relief, if any be needed, lies not

with us but in the body constituted to pass laws for the State . . .”, 372

U.S. at 732).

“The Court has always been reluctant to

expand the concept of substantive due

process because guideposts for responsible

decisionmaking in this unchartered area are

scarce and open-ended.”

This restrained jurisprudential approach gives the

States latitude to craft legislation that balances the various

competing interests affected by a particular issue.

The Ninth Circuit opinion, if allowed to stand,

trumpets a substantially more intrusive role for federal

courts in reviewing State legislation. Under its approach,

State statutes that impose general rules that rationally

advance legitimate State interests across a continuum of

conduct will not stand. Rather, under the Ninth Circuit’s

construct, federal courts must examine each application of

a State statute and determine whether the State’s interest in

that particular application is sufficiently strong to outweigh

other interests that may be involved. Such balancing of

interests, we are told, “is quintessentially a judicial role

. . . No legislative body can perform the task.”'®

The question of whether some form of physician

assisted suicide should be allowed is a controversial issue

of social policy implicating a wide range of interests. The

Ninth Circuit decision not only purports to find a

constitutionally compelled resolution of that issue, it does

so in a manner that significantly enlarges the role of the

federal judiciary in resolving other such issues. For both

of these reasons, this is a case of exceptional importance,

warranting review by this Court.

1 Collins v. Harker Heights, 503 U.S. 115, 125 (1992).

105 App. at A-111.

CONCLUSION

In addressing an important issue of social policy,

the Ninth Circuit has departed from the traditional

approach adopted by this Court and misapplied this Court’s

prior holdings, creating an expansive and intrusive role for

the federal judiciary in reviewing State statutes. Its explicit

due process holding conflicts with that of every other

appellate court that has considered the issue, and its

implicit equal protection decision suffers from the same

flaw as that of the only other appellate court to reach the

same conclusion.

For all these reasons, this Court should grant the

Petition for Writ of Certiorari and reverse the decision of

the United States Court of Appeals for the Ninth Circuit.

Respectfully submitted this 3rd day of July, 1996.

CHRISTINE O. GREGOIRE

Attorney General

*WILLIAM L. WILLIAMS

Sr. Assistant Attorney General

WILLIAM BERGGREN COLLINS

Sr. Assistant Attorney General

*Counsel of Record

P.O. Box 40113

Olympia, WA 98504-0113

Telephone: (360) 753-4960

Attorneys for Petitioners

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.