Amicus Curiae Brief — Washington v. Glucksberg

veprene VvuuTt, U.d

0) FILED

No. 96-110 NOV 8 1995

In THE

Supreme Court of the

OCTOBER TERM, 1996~

STATE OF WASHINGTON, and CHRISTINE GREGOIRE,

Attorney General of the State of Washington,

7 Petitioners,

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

THOMAS A. PRESTON, M.D., and

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

Respondents.

On Writ of Certiorari to the

United States Court of Appeals

for the Ninth Circuit

BRIEF AMICI CURIAE OF THE UNITED STATES

CATHOLIC CONFERENCE; NEW YORK CATHOLIC

CONFERENCE; WASHINGTON STATE CATHOLIC

CONFERENCE; OREGON CATHOLIC CONFERENCE;

CALIFORNIA CATHOLIC CONFERENCE; MICHIGAN

CATHOLIC CONFERENCE; CHRISTIAN LIFE

COMMISSION OF THE SOUTHERN BAPTIST

CONVENTION; NATIONAL ASSOCIATION OF

EVANGELICALS; THE LUTHERAN CHURCH-

MISSOURI SYNOD; WISCONSIN EVANGELICAL

LUTHERAN SYNOD-LUTHERANS FOR LIFE;

THE EVANGELICAL COVENANT CHURCH;

AND THE AMERICAN MUSLIM COUNCIL

IN SUPPORT OF PETITIONERS

STATE OF WASHINGTON, ET AL.

Of Counsel: Mark E. CHopko *

JEFFREY HUNTER MOON General Counsel

Solicitor UNITED STATES CATHOLIC

MICHAEL F. MosEs CONFERENCE

Assistant General Counsel 2°21" F ourth St., N.E.

Washington, D.C. 20017

(202) 541-3300

November 8, 1996 * Counsel of Record

Witeon - Eras Printine Co., inc. - 789-0096 - WasHIncTON, D.C. 20001

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ii

TABLE OF AUTHORITIES

CASES: Page

Azzolino v. Dingfelder, 315 N.C. 108, 387 S.E.2d

528 (1985), cert. denied, 479 U.S. 835 (1986) .... 14

Becker v. Schwartz, 46 N.Y.2d 401, 386 N.E.2d

807 (N.Y. 1978)...... ccmnenegesisidaatnsinieintaiaiaiaiadaiiamaaiaa 14

Blackburn v. State, 28 Ohio St. 146 (1878) deandeiedle 28

Bowers v. Hardwick, 478 U.S. 186 (1986) ............... 20

Brooklyn Savings Bank v. O’Neil, 324 U.S. 697

0 ———————————————— 15

Collins v. City of Harker Heights, 508 U.S. 115

> SS 12

Compassion in Dying v. Washington, 49 F.3d 586

(9th Cir. 1995) (panel), rev’d, 79 F.3d 791 (9th

Cir. 1996) (en banc), reh’g by full court denied,

95 F.8d 1440 (9th Cir. 1996) —............ passim

Cruzan v. Director, Missouri Dep’t of Health, 497

Uy 17, 19

Elliott v. Brown, 361 So.2d 546 (Ala. 1978) ........... 14

Furman v. Georgia, 408 U.S. 288 (1972) ............... 14

Griswold v. Connecticut, 381 U.S. 479 (1965) ......8, 10, 11

Jacobson v. Massachusetts, 197 U.S. 11 (1905)... 6

Lee v. Oregon, 891 F. Supp. 1429 (D. Or. 1995),

appeal pending, No. 95-35804 (9th Cir.) —.......... 15

Lee v. Oregon, 869 F. Supp. 1491 (D. Or. 1994)... 15

Lininger v. Eisenbaum, 764 P.2d 1202 (Colo.

) sone we TS 14

Loving v. Virginia, 388 U.S. 1 (1967) susiitideindl 10, 12, 20, 21

Martin v. Commonwealth, 184 Va. 1009, 87 S.E.2d

St. en 23

Memphis v. Greene, 451 U.S. 100 (1981) —................ 15

Meyer v. Nebraska, 262 U.S. 390 (1928) ............... 9, 12,18

Michael H. v. Gerald D., 491 U.S. 110 (1989)........ 18, 20

Moore v. East Cleveland, 481 U.S. 494 (1977)........ 7,18

Olmstead v. United States, 277 U.S. 488 (1928) .... 12

Palko v. Connecticut, 302 U.S. 319 (1987).............. 8, 25

Paris Adult Theatre I v. Slaton, 418 U.S. 49

(19738) 25

People v. Kevorkian, 527 N.W.2d 714 (Mich.

1994), cert. denied, 115 S. Ct. 1795 (1995) ........ 17

TABLE OF AUTHORITIES—Continued

Page

Pierce v. Society of Sisters, 268 U.S. 510 (1925) ..9, 10, 12

Planned Parenthood v. Casey, 505 U.S. 833

(1992) .. ..11, 20, 21, 22, 24

Poe v. Ullman, 367 US. “497 (1961) .. Ae aaa 11

Quill v. Vacco, 80 F.3d 716 (2d Cir. 1996) . ra acta : 17

Reno v. Flores, 507 U.S. 292 (1998)... 12

Reynolds v. United States, 98 U.S. 145 (1878)... 12

Roe v. Wade, 410 U.S. 113 (1978) ..............6, 10, 11, 24, 25

Snyder v. Massachusetts, 291 U.S. 97 (1984)... s

Stamford Bd. of Educ. v. Stamford Educ. Ass'n,

697 F.2d 70 (2d Cir. 1982) .. 15

Thornburgh v. American College of Obstetricians

and Gynecologists, 476 U.S. 747 (1986) 6

MISCELLANEOUS:

Darrel W. Amundsen, Medicine, Society, and Faith

in the Ancient and Medieval Worlds (Johns Hop-

CE EE ae ne 18

M. Arbagi, Roe and the Hippocratic Oath, in

Abortion and the Constitution (eds. D. Horan,

E. Grant & P. Cunningham) (Georgetown Uni-

CC TC. aN 11

American Association of Suicidology, Report of the

Committee on Physician-Assisted Suicide and

Euthanasia, 26 Suicide & Life-Threatening Be-

havior (1996 Supp.) —.....-......cccccccccccccccceeeeeeeeeenees 26

American Bar Association Commission on Legal

Problems of the Elderly, Memorandum of Janu-

ary 17, 1992, reprinted in 8 Issues in Law &

Medicine 117 (Summer 1992) ... 15

Dennis L. Breo, MD-Aided Suicide Voted Down:

Both Sides Say Debate to Continue, 266 JAMA

CE 9

Benjamin N. Cardozo, Nature of the Judicial

Process (Yale Univ. Press 1949)... 23

Mark E. Chopko & Michael F. Moses, Assisted

Suicide: Still a Wonderful Life?, 70 Notre Dame

L. Rev. 519 (1995) ..... ESS Sn 17

iv

TABLE OF AUTHORITIES—Continued

J. Connery, The Ancients and the Medievals on

Abortion: The Consensus the Court Ignored,

in Abortion and the Constitution (eds. D. Horan,

E. Grant & P. Cunningham) (Georgetown Uni-

CD OS, ee ee

C.S. Cleeland, et al., Pain and its Treatment in

Outpatients with Metastatic Cancer, 330 New

Eng. J. Medicine 592 (1994) —...............................

Will Durant, The Life of Greece (1939) —..............

Ezekiel J. Emanuel, et al., Euthanasia and P»ysi-

cian-Assisted Suicide: Attitudes and Experi-

ences of Oncology Patients, Onocologists, and

the Public, 347 The Lancet 1805 (June 29,

ITED: cceshetncndintibenrnshtaemasniatitl derentnesiesatataiinanemenaithigiatanees

Kathleen M. Foley, The Relationship of Pain and

Symptom Management to Patient Requests for

Physician-Assisted Suicide, 6 J. of Pain and

Symptom Management 289 (1991) .................

D. Horan & B. Balch, Roe v. Wade: No Justifica-

tion in History, Law or Logic, in Abortion and

the Constitution (eds. D. Horan, E. Grant & P.

— (Georgetown University Press

1 EE Ne.) ES oe MSE o's,

House of Lords, 1 Report of the Select Committee

on Medical Ethics (Jan. 31, 1994)

House Judiciary Subcommittee on the Constitution,

104th Cong., 2d Sess., Physician-Assisted Suicide

and Euthanasia in the Netherlands (Sept. 1996)

(Report of Chairman Charles T. Canady) .........

Harold G. Koenig, Attitudes of Elderly Patients

and Their Families Toward Physician-Assisted

Suicide, 156 Arch. Intern. Med. 2240 (Oct. 28,

aes Se es ee ee

Legislating Assisted Suicide, The Washington Post,

Baie, O, TEE GO BED cceeccsttisttiidlitccnicntiidaiinia

P.J. van der Maas, et al., Euthanasia and Other

Medical Decisions Concerning the End of Life

(Elsevier Science Publishing 1992) ................. us

Page

11

18

11

v

TABLE OF AUTHORITIES—Continued

Page

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

24 Dug. L. Rev. 1 (Fall 1985)... 17

Thomas More, Utopia (Penguin Books 1965)... 19

P. Marzuk, et al., Increase in Suicide by Asphyzia-

tion in New York City After the Publication of

Final Ezit, 329 New Eng. J. Med. 1508 (Nov.

ee Pa 19

New York State Task Force on Life and the Law,

When Death is Sought: Assisted Suicide and

Euthanasia in the Medical Context (May 1994). passim

Pope John Paul II, Encyclical Letter Evangelium

Vitae (March 256, 1906) .........2n........-eceeceeeee nee 18

State of California, Summit on Effective Pain

Management: Removing Impediments to Ap-

propriate Prescribing (Summit Report 1994) _.. 26

52 Am.Jur.2d Marriage (2d ed. 1970) ....... iacanetieeee 12

In THE

Supreme Court of the United States

OCTOBER TERM, 1996

No. 96-110

STATE OF WASHINGTON, and CHRISTINE GREGOIRE,

Attorney General of the State of Washington,

7 Petitioners,

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

THoMas A. PrResToN, M.D., and

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

Respondents.

On Writ of Certiorari to the

United States Court of Appeals

for the Ninth Circuit

BRIEF AMICI CURIAE OF THE UNITED STATES

CATHOLIC CONFERENCE; NEW YORK CATHOLIC

CONFERENCE; WASHINGTON STATE CATHOLIC

CONFERENCE; OREGON CATHOLIC CONFERENCE;

CALIFORNIA CATHOLIC CONFERENCE; MICHIGAN

CATHOLIC CONFERENCE; CHRISTIAN LIFE

COMMISSION OF THE SOUTHERN BAPTIST

CONVENTION; NATIONAL ASSOCIATION OF

EVANGELICALS; THE LUTHERAN CHURCH-

MISSOURI SYNOD; WISCONSIN EVANGELICAL

LUTHERAN SYNOD-LUTHERANS FOR LIFE;

THE EVANGELICAL COVENANT CHURCH;

AND THE AMERICAN MUSLIM COUNCIL

IN SUPPORT OF PETITIONERS

STATE OF WASHINGTON, ET AL.

2

INTEREST OF AMICI

This Court has agreed to review a decision that draws

a startling and unprecedented conclusion—that the Due

Process Clause confers a right to obtain from one’s physi-

cian the means of committing suicide. This remarkable

and erroneous conclusion obliterates a most basic tenet

of American law—that the State may prohibit conduct

that facilitates the killing of another person. For this

reason, representatives of diverse religious communities

unite here across denominational lines as amici curiae to

demonstrate to this Court why the lower court was wrong.

Our Constitution does not create a right to have one’s

life taken, much less a right to dispense lethal drugs to

facilitate the killing of others. Individual statements of

interest follow.

The United States Catholic Conference is a nonprofit

corporation organized under the laws of the District of

Columbia. Its members are the active Roman Catholic

Bishops in the United States. The Catholic Bishops of

New York, Washington, Oregon, California, and Michi-

gan are, in addition, members of the State Catholic Con-

ferences of those respective states. The Conferences are

vehicles through which the Bishops speak cooperatively

and collegially on matters affecting the Catholic Church

and its people. Roman Catholicism is the largest re-

ligious denomination in the United S.ates, with over 600U

million members in this country. The Conferences advo-

cate and promote the pastoral teaching of the Church on

diverse issues, including the protection of human rights

and the sanctity and dignity of human life. Each Con-

ference has been active in supporting state laws that

protect persons from assisted suicide.

The Christiana Life Commission is the moral concerns

and public policy agency for the Southern Baptist Con-

vention, the nation’s largest Protestant denomination, with

over 15.2 million members in over 38,000 autonomous

3

local churches. The Commission is charged with address-

ing public policies affecting the sanctity of human life.

The National Association of Evangelicals (“NAE”) is

a nonprofit association of evangelical Christian denom-

inations, churches, organizations, institutions and indi-

viduals. It includes some 42,500 churches from 75 de-

nominations, and 300 parachurch ministries. NAE has

joined in this and many other amicus briefs in the defense

of human rights, including the right to life.

The Lutheran Church-Missouri Synod is the second-

largest Lutheran denomination in the United States. It

has about 6,000 member congregations and about 2.6

million individual members. In 1995, as a result of their

deeply held religious beliefs on the sanctity of life, the

congregations of the Synod passed a resolution expressing

the Synod’s objection “to medical personnel having any

part in actively inducing death, even at the patient's

request.” The Synod resolved “to speak against any at-

tempt to legalize physician-assisted suicide.”

The Wisconsin Evangelical Lutheran Synod-Lutherans

for Life is a para-synod organization in fellowship with

the 400,000-member Wisconsin Evangelical Lutheran

Synod (“WELS”) and the 10,000-member Evangelical

Lutheran Synod. WELS-Lutherans for Life is a special-

ized ministry seeking to make known God’s will on life

and to provide assistance to others on life issues. God's

will concerning euthanasia and suicide is clear, recog-

nizing that God acknowledges the absolute value of human

life despite its varying or diminished quality. WELS-

Lutherans for Life stands by the conviction that it is

contrary to the will of Ged to take one’s own life or to

assist in doing so.

The Evangelical Covenant Church (“ECC”) is a Prot-

estant denomination with 92,000 members in 600 churches

throughout the United States It operates a university,

two hospitals, twelve continuing care and retirement com-

4

munities, and twelve nursing homes as a Christian min-

istry. ECC has adopted an ethical guideline on death and

euthanasia. The guideline affirms the ECC’s commitment

to provide “the best palliative measures we can to relieve

the pain, discomfort and suffering of our patients. .. .

We do not act in any way intentionally to cause, assist,

or accelerate the death of patients.”

The American Muslim Council (“AMC”) is a nationally

recognized organization representing the interests of the

American Muslim community. AMC is a committed

advocate of human rights. It participates in interfaith and

multiethnic dialogue with the hope of promoting an en-

vironment in which tolerance and justice will thrive.

AMC’s opposition to assisted suicide is rooted in Islamic

belief, which strongly affirms the sanctity of human life.

Through their counsel, the parties have consented to

the appearance of these amici.

SUMMARY OF ARGUMENT

Americans are a people who esteem personal freedom.

But personal freedom is lived and experienced in a human

community. To live together in a community requires

accommodation, compromise, and even limitations on

one’s choices in order to protect the common good. We

are not a nation in which each person is a law unto him-

self or herself, but a nation of ordered liberty.

In preserving those freedoms essential to ordered liberty,

this Court has insisted that the judiciary give special

attention to the constitutional text, to history and tradi-

tion, and to the specificity of a claim in evaluating whether

a personal demand also finds expression in the Due Process

Clause. The claims advanced in the court below fail these

basic tests.

In this case, the Ninth Circuit read the Due Process

Clause to hold that persons who are terminally ill have

— ae

5

a liberty interest in having someone else provide the

means of taking their own lives. While the courts have

often struggled with the scope and meaning of the word

“liberty,” it is plain that life is necessary to the exercise

of any other right or liberty. A demand for assistance in

killing oneself has never received protection under the

constitutional guarantee of liberty. Indeed, the text oi

the Due Process Clause would be emptied of meaning were

it read as protecting a right to be deprived of life and

liberty.

Moreover, the court below disregarded a basic tenet of

the common law, that one person may not facilitate

the killing of another person. The Washington statute

at issue here is such a law. It is quite distinct from the

law regulating the acceptance or rejection of medical

treatment. One is not required to accept every con-

ceivable medical treatment that might preserve life. This

case, however, is not about letting people die by terminat-

ing treatment, but deliberately and intentionally making

people die through affirmative means. Our history and

traditions have never permitted the latter.

Absent action by this Court, the decision below would

set in motion profound and ominous changes in how our

society will care for persons who are old, poor, disabled,

and vulnerable. Lifting prohibitions against assisted suicide

will have a disproportionate and adverse impact upon the

poor, the elderly, minorities, women, and those without

access to medical care. These are precisely the people

whom our Constitution should protect. This Court is

being asked by respondents to alter the fundamental

nature of our relationships at the end of our lives, and

to do so with no reliable , sie as to the consequences.

The radical departure from our legal traditions sought

below could adversely affect the life and death of every

American. This Court should reverse.

6

ARGUMENT

An ardent champion of personal freedom, Justice Wil-

liam O. Douglas, understood that living together in a

community requires accommodation, compromise, and

limitations on one’s choices in order to protect the common

good. In his concurring opinion in Roe v. Wade, 410

U.S. 113 (1973), he wrote that liberty included “auton-

omous control over the development of one’s intellect,

interests, tastes and personality.” Jd. at 211. Yet such

freedom of thought and belief, which Justice Douglas said

was “absolute, permitting of no exceptions,” is internal to

the person. Personal choices exhibited in conduct are

subject to restraint for the sake of the common good and

civic peace and order. Some conduct, which might at

first glance appear exclusively personal, is subject even to

outright prohibition for these reasons. Jacobson v. Massa-

chusetts, 197 U.S. 11 (1905). We are a nation not of

unbridled and autonomous liberties, but of ordered liberty.

While accommodation and compromise are first and

foremost the task of our democratic and legislative process,

this Court has a role in preserving those personal free-

doms that are essential to ordered liberty. Yet the Court's

reliance upon principles or values that cannot fairly be

read into the Constitution “usurp the people’s authority,

for such decisions represent choices that the people have

never made and that they cannot disavow through correc-

tive legislation.” Thornburgh v. American College of

Obstetricians and Gynecologists, 476 U.S. 747, 787

(1986) (White, J., dissenting). The need for restraint

is particularly essential in interpreting a concept as poten-

tially open-ended as “liberty”:

The Judiciary, including this Court, is the most vul-

nerable and comes nearest to illegitimacy when it

deals with judge-made constitutional law having little

or no cognizable roots in the language or even the

design of the Constitution. Realizing that the present

construction of the Due Process Clause represents

7

a major judicial gloss on its terms, as well as on the

anticipation of the Framers . . ., the Court should

be extremely reluctant to breathe still further sub-

stantive content into the Due Process Clause so as

to strike down legislation adopted by a State or city

to promote its welfare.

Moore v. East Cleveland, 431 U.S. 494, 544 (1977)

(White, J., dissenting).

The claimed right in the case at bar is a demand for

the affirmative assistance of another to end one’s life.

Although this demand has been called by various names,

what respondents have asked this Court to create is a

“right” to assistance in committing suicide. In holding

that there is such a right implicit in the Due Process

Clause, the lower court disregarded this Court’s decisions

on substantive due process and acted in derogation of the

common good.

I. THE CONSTITUTION DOES NOT CREATE OR

PROTECT A RIGHT TO ASSISTED SUICIDE.

A. Assisted Suicide Does Not Satisfy Any of the

Criteria This Court Has Established For Identify-

ing Interests Subject to the Protection of Substan-

tive Due Process.

1. This Court Has Insisted Upon a Rigorous Test

for Substantive Due Process Claims.

Three methodological principles for identifying inter-

ests entitled to substantive due process protection have

emerged from this Court’s decisions, ensuring judicial

restraint and preventing this Court’s substantive due proc-

ess jurisprudence from becoming simply a product of

“the predilections of those who happen at the time to be

Members of [the] Court.” Moore v. East Cleveland, 431

U.S. at 502. First, no interest can be protected under the

substantive component of the Due Process Clause if recog-

nition of that interest conflicts with the text of the Con-

stitution. If it were otherwise, the Due Process Clause

would simply be a judicial vehicle for amending the

Constitution, in contravention of the exclusive mech-

anism that the constitutional text itself establishes for

amendment.

Second, this Court has identified those interests en-

titled to substantive due process protection by reference

to an objective standard, to wit, those interests which are

“deeply rooted in this Nation’s history and tradition,”

id. at 503, or which are so “fundamental” as to lie at

the very “base of our civil and political institutions” such

that “ordered liberty” could scarcely be imagined were

they eliminated. Palko v. Connecticut, 302 U.S. 319, 325,

328 (1937); see also Snyder v. Massachusetts, 291 U.S.

97, 105 (1934) (due process protects those liberties “so

rooted in the traditions and conscience of our people as

to be ranked as fundamental”); Griswold v. Connecticut,

381 U.S. 479, 501 (1965) (the Court has “continual[ly]

insisted] upon respect for the teachings of history [and]

solid recognition of the basic values that underlie our

society”) (Harlan, J., concurring in judgment). Thus,

history plays more than a merely “useful role,” Com-

passion in Dying v. Washington, 79 F.3d 790, 805 (9th

Cir. 1996), in deciding questions of substantive due proc-

ess. Opinion polls (id. at 810) and “changing values”

(id. at 802-3) may influence legislators, but judges are

bound by a more enduring standard in matters of con-

stitutional law.’

1 The Ninth Circuit’s assessment of public opinion was not only

misplaced but wrong. Since 1994, at least seventeen states have

rejected legislative proposals to legalize assisted suicide. Alaska,

HB 371 (died in House State Affairs Committee, 1996); Arizona,

S.B. 1007 (negative vote in Senate Health Committee, Jan. 1996) ;

California, A. 1080 (withdrawn by sponsor in 1995) and A. 1310

(died without a hearing, Jan. 1996); Colorado, H.B. 1308 (tabled

by House Committee on Health, Environment, Welfare and Institu-

tions, Feb. 1995) and H.B. 1185 (defeated 7-to-4 in the same com-

mittee, Feb. 1996) ; Connecticut, S8.B. 361 (died in committee, April

9

That history is the linchpin for deciding what is pro-

tected under substantive due process is evident from this

Court’s decisions. Early in this century, relying upon our

nation’s historic recognition of the right and duty of

parents to direct the upbringing of their children, this

Court struck down laws that forbade parents to have

their children taught a foreign language, Meyer v. Ne-

braska, 262 U.S. 390 (1923), or to send their children

to private schools. Pierce v. Society of Sisters, 268 U.S.

1995) ; Maine, L.D. 748 (rejected by House Judiciary Committee

10-to-8 and by full House 105-to-35, June 1996); Maryland, H.B.

933 (rejected by House Environmental Affairs Committee 15-to-4

in 1995) and H.B. 474 (rejected by same committee 16-to-5 in

1996) ; Massachusetts, H.B. 3173 (died in House Judiciary Com-

mittee, May 1995) ; Michigan, H.B. 4134 (died in committee, 1995) ;

Mississippi, H.B. 1023 (died in House Judiciary Committee, 1996) ;

Nebraska, L.B. 1259 (died in Judiciary Committee, 1996); New

Hampshire, H.B. 339 (rejected by House of Representatives 256-

to-90, Jan. 1996); New Mexico, 8.B. 446 (tabled 6-to-1 by Senate

Judiciary Committee, Feb. 1995); New York, S. 1683, S. 5024-A,

A. 68383 (died without a hearing in 1995); Vermont, H.B. 335

(died in House Committee on Health and Welfare, 1995) ; Washing-

ton, 8.B. 5596 (died in committee, March 1995); Wisconsin, S.B.

90 and A.B. 174 (died in committee).

The voters of Washington have specifically rejected an effort to

weaken their State’s law against assisted suicide by referendum,

as has the State of California. Dennis L. Breo, MD-Aided Suicide

Voted Down; Both Sides Say Debate to Continue, 266 JAMA 2895

(Nov. 27, 1991). In 1996, Iowa and Rhode Island joined the ma-

jority of states that impose criminal penalties on assisted suicide.

Iowa S.F. 2066, to be codified at Iowa Code § 707A.2 (Supp. 1996) ;

R.I. Pub. Act 96-133, to be codified at R.I. Gen. Stat. tit. 11, ch. 60.

Opinion polls indicate a divided and ambivalent electorate on this

question, see Legisiating Assisted Suicide, The Washington Post,

Apr. 4, 1996, at Al8, with opposition to assisted suicide being

strongest among the frail, elderly, and terminally ill—precisely

those most directly affected by the issue. Harold G. Koenig, Atti-

tudes of Elderly Patients and Their Families Toward Physician-

Assisted Suicide, 156 Arch. Intern. Med. 2240 (Oct. 28, 1996) ;

Ezekiel J. Emanuel, et al., Euthanasia and Physician-Assisted

Suicide: Attitudes and Experiences of Oncology Patients, Oncolo-

gists, and the Public, 347 The Lancet 1805 (June 29, 1996).

10

510 (1925). In Griswold v. Connecticut, this Court

relied upon the historic sanctity of the marital relation-

ship to overturn the conviction of a physician for giving

a married couple information and advice about contra-

ceptives. 381 U.S. at 486. This Court said that the

Connecticut law “operat{ed] directly on an intimate rela-

tion ef husband and wife,” having a “maximum destruc-

tive impact” upon that relationship. /d. at 482, 485.’

Justice Goldberg, in concurring, left no doubt that in

his view it was the marital or family relationship that the

Connecticut law threatened. That law, he wrote, “dis-

rupt(ed] the traditional relation of the family—a relation

as old and as fundamental as our entire civilization. . . .”

Id. at 495-96 (Goldberg, J., concurring) .*

History was also identified as the operative principle

when the Court defined abortion to be a constitutional

right. Half of the majority opinion in Roe v. Wade is

devoted to historical attitudes toward abortion. Based on

this review, a majority of the Court concluded that stat-

utes banning abortion were “of relatively recent vintage,”

deriving from “statutory changes effected, for the most

part, in the latter half of the 19th century.” 410 U.S. at

129, 140-41. While the Court’s historical account in

* This Court’s concern with the text of the Constitution is also

apparent in Griswold. The Court relied upon “the zone of privacy

created by several constitutional guarantees.” 3881 U.S. at 485.

Among the various guarantees identified by the Court were the

fourteenth amendment freedom to educate one’s children, id. at

482, the first amendment right of association, id. at 488, and the

third and fourth amendment right to be free of governmental

intrusion into the home. /d. at 484.

* Reliance upon history and tradition has been equally dispositive

in identifying rights triggering heightened judical scrutiny under

the Equa! Protection Clause. In Loving v. Virginia, 388 U.S. 1

(1967), for example, in striking down on equal protection and due

process grounds a Virginia law that forbade interracial marriages,

the Court observed that “[t)he freedom to marry has long been

recognized as one of the vital personal rights essential to the orderly

pursuit of happiness by free men.” 388 U.S. at 12.

11

Roe is seriously flawed,’ this Court's extended historical

discussion in Roe nonetheless underscores its continued

reliance upon our Nation's history and traditions to iden-

tify interests entitled to substantive due process protection.

Nothing in Planned Parenthood v. Casey, 505 U.S.

833 (1992), repudiates the historical standard to which

Roe and earlier cases adhered over the course of nearly

a century. Indeed, Casey reaffirmed that in its substan-

tive due process decisions this Court looks to “what

history teaches are the traditions from which [the Nation]

developed as well as the traditions from which it broke.”

Casey, 505 U.S. at 850, quoting Poe v. Ullman, 367 U.S.

497, 542 (1961) (Harlan, J., dissenting from dismissal

on jurisdictional grounds). Legislators can look where

they will, but it is our history and traditions that this

Court for a century has embraced as the objective criterion

that will prevent its substantive due process jurisprudence

from lapsing into an expression of the justices’ own “per-

sonal and private notions.” Griswold v. Connecticut, 381

U.S. at 493 (Goldberg, J., concurring) .*

*D. Horan & B. Balch, Roe v. Wade: No Justification in History,

Law or Logic, J. Connery, The Ancients and the Medievals on

Abortion: The Consensus the Court Ignored, and M. Arbagi, Roe

and the Hippocratic Oath, in Abortion and the Constitution (eds.

D. Horan, E. Grant & P. Cunningham) (Georgetown University

Press 1987). As this Court is aware, Christian groups appearing

here as amici believe that Roe was wrongly decided.

® This is not to dispute that constitutional adjudication requires

“reasoned judgment.” Casey, 505 U.S. at 849. Reason, however,

does not operate without criteria to guide it. Otherwise, judges

would indeed be “free to roam where unguided speculation might

take them.” /d. at 850, quoting Poe v. Ullman, 367 U.S. 497, 542

(Harlan, J., dissenting).

* The plurality opinion in Casey does concern itself with the pro-

tection of certain choices it called “intimate” and “personal.” 505

U.S. at 8561. We do not view this language as setting forth a new

test for due process purposes or even signaling a willingness to

depart from settled constitutional law. Rather this language is

12

A third guiding principle of the Court's substantive due

process jurisprudence is its recognition that interests for

which heightened constitutional protection is sought must

be identified with specificity and with an eye toward the

factual context in which that interest is asserted. Reno

v. Flores, 507 U.S. 292, 302 (1993) (substantive due

process claims must begin with a “careful description of

the asserted right”); Collins v. City of Harker Heights,

503 U.S. 115, 126 (1992). Whether a state can consti-

tutionally forbid or authorize certain conduct cannot be

answered by describing the conduct in its most abstract

or generic terms. States, for example, may not forbid

individuals of different races to marry, Loving yv.

Virginia, 388 U.S. | (1967), but they can prohibit polyg-

amous unions, Reynolds v. United States, 98 U.S. 145

(1878), or marriages between members of the same im-

mediate family or persons of the same gender. 52

Am.Jur.2d Marriage §§ 62-63 (2d ed. 1970) (mar-

riages between closely related persons are universally

proscribed). Likewise, a state may not prevent parents

from sending their children to private schools, Pierce v.

Society of Sisters, supra, or from providing them instruc-

tion in a foreign language, Meyer v. Nebraska, supra,

but can require that they attend school and receive in-

struction in English.’

descriptive, not prescriptive. See, e.g., Olmstead v. United States,

277 U.S. 438, 478 (1928) (Brandeis, J., dissenting) (discussing the

“right to be let alone”).

7 Meyer, 262 U.S. at 402 (dicta) (“The power of the state to

compel attendance at some school and to make reasonable regula-

tions for all schools, including a requirement that they shall give

instructions in English, is not questioned”); Pierce v. Society of

Sisters, 268 U.S. at 534 (dicta) (“No question is raised concerning

the power of the state reasonably to regulate al! schools, to inspect,

supervise and examine them, their teachers and pupils; to require

that all children of proper age attend some school, that teachers

shall be of good moral character and patriotic disposition, that

certain studies plainly essentia] to good citizenship must be taught,

.

13

Thus, whether interracial, polygamous, or incestuous

unions may constitutionally be prohibited cannot be an-

swered merely by framing the conduct at issue as an

exercise of the “right to marry,” just as the constitu-

tionality of a law touching education cannot be deter-

mined merely by invoking a generic parental right to

control the upbringing of one’s child. Individual justices

have disagreed about the precise level of specificity with

which a particular interest must be characterized,” but the

impossibility of reconciling the Court’s various due process

decisions based on mere recitation of such abstract rights

as the “right to marry” or “right to control the upbringing

of one’s child” demonstrates that considerable specificity

in articulating the precise interest at issue is necessary.

2. Assisted Suicide Fails This Court’s Due Process

Test.

Application of these three criteria—consistency with

constitutional text, grounding in history, and factual spec-

ificity in the description of the underlying interest—to

the conduct at issue here at once demonstrates that, con-

trary to the Ninth Circuit’s decision, Compassion in

Dying, 79 F.3d at 793, 802, “terminally ill, competent

adults” have no due process “right to die.” First, it is

impossible to reconcile recognition of a “right to die”

with the actual text of the Constitution. On the contrary,

the Due Process Clause protects “life.” U.S. Const.,

and that nothing be taught which is manifestly inimical to the

public welfare”).

* Compare Michael H. v. Gerald D., 491 U.S. 110, 118-30 (1989)

(Scalia, J.) (considering a father’s interest in asserting parental!

rights over a child whose mother was at all times married to an-

other man), with id., 491 U.S. at 182 (O’Connor, J., concurring in

part) (stating that “[o]n occasion the Court has characterized rele-

vant traditions protecting asserted rights at levels of generality that

might not be ‘the most specific level’ available”), and with id., 491

U.S. at 136 (Brennan, J., dissenting) (stating that fathers have a

constitutionally protected interest in their relationship with their

children) .

14

amend. 14. Accordingly, there can be no constitutional

guarantee to choose to be dead. Indeed, life is more

fundamental than any other right, for it is the “right

to have rights.” Furman v. Georgia, 408 U.S. 238, 290

(1972) (Brennan, J., concurring). Even outside a con-

stitutional context, American courts generally have Te-

jected any claim that there is a legal interest in not being

alive.”

Due Process Clause also guarantees “liberty.” But

PR... to be dead does not enhance ones liberty.

Instead it brings all human freedom to an end. It is

difficult to see how one can speak coherently of a freedom

to give up all one’s freedom. Self-destruction is clearly a

far more radical renunciation of freedom than, for ex-

ample, selling oneself to another person, for it is irreversi-

ble and eliminates the potential for exercising all other

liberties. In short, the Due Process Clause, which is framed

as a guarantee against the deprivation of life and liberty,

would be turned on its head were it construed as requiring

the state to permit individuals to assist others in abandon-

ing their life and liberty. |

Our Constitution has never been understood as requir-

ing states to permit individuals to relinquish their liberty

® e.., Lininger v. Eisenbaum, 764 P.2d 1202, 1212 (Colo.

eh. ~ however impaired and regardless of any attendant

expenses, cannot rationally be said to be a detriment . . . when

measured against the alternative of . . . not having existed at all”) ;

Azzolino v. Dingfelder, 315 N.C. 108, 111, 337 S.E.2d 528, 533

(1985) (“[Wle are unwilling to say that life, even life with severe

defects, may ever amount to a legal injury”), cert. denied, 479

U.S. 885 (1986) ; Elliott v. Brown, 361 So.2d 546, 548 (Ala. 1978)

]

“(There is no legal right not to be born... . Upon what lega

Seee eee Guo conse to Genamaien Giant 08 to elaar eat to tamwe

been born than to be born with deformities? ... We decline to

pronounce judgment in the imponderable area of non-existence”) ;

Becker v. Schwartz, 46 N.Y.2d 401, 411, 386 N.E.2d 807, 812 (N.Y.

1978) (rejecting a claim of wrongful life “in view of the very

nearly uniform high value which the law and mankind has placed

on human life”).

15

even when that is what they claim to want. American law,

for example, does not recognize under any circumstances

4 transaction to sell oneself into permanent servitude.

Memphis v. Greene, 451 U.S. 100, 120 (1981). A host

of far less serious interests, and even Statutory interests

like the right to be paid a minimum wage, may not be

waived. Brooklyn Savings Bank v. O'Neil, 324 U.S. 697,

706-07 (1945). Similarly, the law will not enforce an

unconscionable bargain or a contract that violates public

policy, even if the parties freely agreed to it. E.g., Stam-

ford Bd. of Educ. v. Stamford Educ. Ass'n, 697 F.2d 70,

73 (2d Cir. 1982). If the law can prevent waiver of

these lesser interests, it would be inexplicable if the state

were constitutionally required to stand idle while an indi-

vidual, alone or with assistance, renounced the one interest

upon which all these others depend. It is life itself, as well

as liberty, that the founding fathers declared to be

“inalienable.”

Recognition of a “right to die” on the part of terminally

ill, competent adults also creates serious questions of con-

sistency with other constitutional provisions. One court.

for example, has concluded that the failure to protect a

class of citizens from self-inflicted deadly harm violates

the Equal Protection Clause, Lee v. Oregon, 891 F. Supp.

1429 (D. Or. 1995) (permanent injunction), appeal

pending, No. 95-35804 (9th Cir.): but see Quill v. Vacco,

80 F.3d 716 (2d Cir. 1996), cert. granted, No. 95-1858

(U.S.). It may violate federal statutes, such as the Ameri-

cans with Disabilities Act, which protects the disabled.

Lee v. Oregon, 869 F. Supp. 1491, 1499 (D. Or. 1994)

(preliminary injunction).

The equal protection concerns implicated here are obvi-

ous. Singling out the terminally ill as a class of persons

who “deserve” to have their suicidal impulses imple-

mented—even as the law continues to forbid assistance

in suicide for everyone else—presupposes that, in some

objective sense, their lives in particular are no longer

16

worth living. This at bottom would reflect a judgment

by the state that some people are better off dead than

alive. A civilized society, and certainly a society that

guarantees equal justice under the law, makes no such

judgment with respect to any person. A judicial declara-

tion that some citizens have a “right to die” would also

be in direct conflict with the decision by almost every

State legislature in the Union to preserve a uniform

prohibition against assisted suicide, raising profound ques-

tions of federalism and separation of powers. Some have

even suggested that the federal judiciary’s sudden dis-

covery of a “right to die” raises questions about the

continued capacity of Americans to debate and devise

democratic solutions to the important modern questions

facing them. Compassion in Dying v. Washington, 85

F.3d 1440, 1446-51 (9th Cir. 1996) (Trott, J., dissent-

ing from the deniai of rehearing en banc by the full

court).

This Court, however, need not resolve these complex

questions to decide this case because assisted suicide,

even were it not in actual conflict with the text of the

Constitution, clearly does not satisfy the historical cri-

terion that this Court, over the course of nearly a century,

has established as the pre-eminent test for identifying

substantive interests whose protection is mandated under

the Due Process Clause. After reviewing societal attitudes

about suicide in the last two millennia, what is probably

the most exhaustive modern historical-legal analysis of

suicide in this country concludes:

[T}here is no significant su for the claim that

a right to suicide is so rooted in our tradition that it

may be deemed “fundamental” or “implicit in the

concept of ordered liberty.” Indeed, the weight of

authority in the United States, from colonial days

through at least the 1970s has demonstrated that the

predominant attitude of society and the law has been

one of opposition to suicide. It follows that courts

17

should not hold suicide or its assistance to be a

protected right under the United States Constitution.

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

24 Dug. L. Rev. 1, 4 (Fall 1985). Relying in part on

the Marzen study, Justice Scalia has observed that there

is no historical support for a right to assisted suicide:

At common law in England, a suicide . . . was

criminally liable. Although the States abolished the

penalties imposed by the common law (i.e., forfeiture

and ignominious burial), they did so to spate the

innocent family and not to legitimize the act. Case

law at the time of the adoption of the Fourteenth

ee a held that assisting suicide was

a criminal offense. The System of Penal Law pre-

sented to the House of Representatives by Representa-

tive Livingston in 1828 would have criminalized

assisted suicide. The Field Penal Code, adopted by

the Dakota Territory in 1877, proscribed attempted

suicide and assisted suicide. And most States that

did not explicitly prohibit assisted suicide in 1868

ized, when the issue arose in the 50 years

following the Fourteenth Amendment's ratification,

that assisted and (in some cases) attempted suicide

were unlawful. Thus, there is no significant support

for the claim that a right to suicide is so rooted in

our tradition that it may be deemed “fundamental”

or “implicit in the concept of ordered liberty.”

Cruzan v. Director, Missouri Dep’t of Health, 497 U.S.

261, 294-95 (1990) (Scalia, J., concurring) (citations

and internal punctuation omitted). Except for the Ninth

Circuit, lower courts are in agreement with this view.

Quill v. Vacco, 80 F.3d 716, 724 (2d Cir. 1996), citing

Mark E. Chopko & Michael F. Moses, Assisted Suicide:

Still a Wonderful Life?, 70 Notre Dame L. Rev. 519, 561

(1995); see also People v. Kevorkian, 527 N.W.2d 714.

733 (Mich. 1994) (stating that it “would be an imper-

missibly radical departure from existing tradition and from

the principles that underlie that tradition to declare that

there is . . . a fundamental right [to assistance in com-

18

mitting suicide] protected by the Due Process Clause”),

cert. denied, 115 S.Ct. 1795 (1995); Compassion in Dying

v. Washington, 49 F.3d 586, 591 (9th Cir. 1995) (panel)

(no constitutional right to aid in killing oneself has been

recognized in “the two hundred and five years of our

existence”), rev'd, 79 F.3d 790 (9th Cir. 1996) (en

banc). The Ninth Circuit’s historical account is flawed

both in method and in its findings. The fact that man-

kind’s view of suicide is “checkered,” Compassion in

Dying, 79 F.3d at 806, or that suicide met with mixed

attitudes in ancient times, id. at 806-07, does not show

that it is “deeply rooted in this Nation’s history and tradi-

tions.” Moore v. East Cleveland, 431 U.S. at 504 (em-

phasis added). The Ninth Circuit’s assessment of the

Christian tradition on suicide is certainly mistaken.”

1 Parents in ancient Greece could slaughter or abandon their

children if weak or deformed, see Will Durant, The Life ot Greece

50 (1989), but this is no proof that the practice is deeply rooted

in American history and traditions. This Court has never hesitated

to reject ancient attitudes, especially when based on ideas that are

inconsistent with those ideas upon which our American institutions

rest. E.g., Meyer v. Nebraska, 262 U.S. 390, 401-02 (1923) (ancient

Greek notions concerning child rearing were based on ideas about

the relation between the individual and the state which are “wholly

different from those upon which our institutions rest,” and no

legislature could impose similar restrictions on our people “without

doing violence to both letter and spirit of the Constitution”).

11“The Church’s tradition has always rejected [suicide] as a

gravely evil choice.” Pope John Paul II, Encyclical Letter Evan-

gelium Vitae, § 66 (March 25, 1995). The single clear instance of

“assisted suicide” in the Old Testament, involving the death of

Saul, is treated as a capital crime (2 Samuel 1:6-16). The Christian

tradition views Judas’s suicide not as an act of repentance (cf. 79

F.3d at 808 n.25), but as an act of despair. Justin, Cyprian,

Tertullian, Clement of Alexandria, Lactantius, Augustine, and other

early Christian thinkers all rejected suicide. Darrel W. Amundsen,

Medicine, Societ:, and Faith in the Ancient and Medieval Worlds

89-102 (Johns Hopkins Univ. 1996). Suicide was seen as murder

of oneself, and sometimes as worse than murder; according to John

Chrysostom, “if it is base to destroy others, much more is it [base]

to destroy one’s self.” Jd. at 98. Christian leaders praised martyrs

19

With respect to the Ninth Circuit's treatment of suicide

in more modern times, the lessening and eventual removal

of criminal penalties for persons who unsuccessfully at- -

tempted suicide does not suggest approval of the practice.

“Although the States abolished the penalties . . . of for-

feiture and ignominious burial, they did so to spare the

innocent family and not to legitimize the act.” Cruzan,

497 U.S. at 294-95 (Scalia, J., concurring) (internal

punctuation altered). That stakes are no longer driven

through the bodies of persons who commit suicide, see

Compassion in Dying, 79 F.3d at 809, is no modern-day

endorsement of suicide. Our current understanding of as-

sisted suicide is informed by undisputed evidence that vir-

tually all who commit suicide (95% in almost every

study) have “a major psychiatric illness at the time of

death.” New York State Task Force on Life and the Law,

When Death is Sought: Assisted Suicide and Euthanasia

in the Medical Context 125 (May 1994); P. Marzuk,

et al., Increase in Suicide by Asphyxiation in New York

City After the Publication of Final Exit, 329 New Eng.

J. Med. 1508, 1510 (Nov. 11, 1993) (“95 percent of all

persons who commit suicide have a serious mental ill-

ness”). It is for such reasons, and not because of societal

who adhered to their faith even under threat of death, but criticized

those who rushed to a martyr’s death too readily. The point of

martyrdom was to remain faithful, not to intend one’s death. The

Ninth Circuit was wholly mistaken in suggesting that St. Augus-

tine’s chief concern about suicide was the toll it was taking on

faithful Christians (79 F.3d at 808), since Augustine strongly

condemned suicides by heretics whose teaching and activities he

vigorously opposed. Amundsen at 109-111. Equally mistaken is the

Ninth Cireuit’s claim (79 F.3d at 808) that St. Thomas More

favored euthanasia because it is mentioned in his fictional work

on the imaginary pagan society of Utopia. See Thomas More,

Utopia 102 (Penguin Books 1965). More’s Utopia also allowed

divorce (id. at 104), but the real-life Thomas More was beheaded

for refusing to accept King Henry VIII’s divorce.

In fact, terminally ill patients . pressing suicidal thoughts

usually abandon the wish to commit .uicide after their depression

has been treated or they have received other appropriate medical

20

approval, that suicide itself is not now punished under the

criminal law.

The criminal proscription of assisted suicide, of course,

is a longstanding tradition that continues to the present

day. The consistency of that proscription has an imme-

diate bearing on the inquiry regarding its constitutional

status. Whatever else can be said of substantive due

process, this much is true: it surely cannot protect con-

duct expressly prohibited throughout our nation’s history.

Michael H. v. Gerald D., 491 U.S. 110, 122 n.2 (1989);

see also Bowers v. Hardwick, 478 U.S. 186, 194 (1986)

(longstanding proscriptions against homosexual sodomy

render any claim to substantive due process protection

“at best, facetious”). Protection of a particular interest

“need not take the form of an explicit constitutional pro-

vision or statutory guarantee” to warrant protection under

the Due Process Clayse, “but it must at least exclude...

a societal tradition of enacting laws denying the interest.”

Michael H. v. Gerald D., 492 U.S. at 122 n.2 (original

emphasis ).

The Ninth Circuit facilely asserts that sometimes history

is not a guarantor of fairness, as illustrated by our nation’s

tragic history of racial discrimination. But now-obsolete

and rejected laws condoning racial discrimination are

easily distinguishable. Formerly a disgraceful part of our

nation’s laws and traditions, racial discrimination was

specifically targeted in the thirteenth and fourteenth

amendments. Clearly the fact that some laws which fur-

thered racial discrimination were once on the books does

not prevent one from finding such laws unconstitutional

now. Loving v. Virginia, supra. The practices of slavery

and racial discrimination are precisely examples of those

“traditions from which [our nation] broke,” Planned

Parenthood v. Casey, 505 U.S. at 850, for it was precisely

treatment. New York State Task Force on Life and the Law, When

Death Is Sought: Assisted Suicide and Euthanasia in the Medical

Context, x, 120-21.

21

for that purpose that the fourteenth amendment was en-

acted. In Loving, the Court further grounded its decision

in history when it observed that the freedom to marry

Polly Bon Plage oper sparred gel wall gaye

essential to orderly pursuit of happiness by free

men.” Loving, 388 U.S. at 12. es -

Finally, the “right to die” or to “control the time and

manner of one’s death,” Compassion in Dying, 79 F.3d at

802, lacks the requisite specificity used in describing sub-

Stantive due process interests. First, the Ninth Circuit

used these very same terms to describe radically different

types of conduct, i.e., refusing medical treatment and ob-

taining a deadly poison, even though these have been

treated quite differently under the law.” Moreover, a

“right to control the time and manner of one’s death” ex-

presses no limitation in terms of conduct or the actor.

Such a claimed right would seem to encompass, for in-

stance, a right to die by gunfire in full view of paying

spectators, or by any other means one chose. Nor does

the claimed right express any limitation with respect to

who may “assist.” See Compassion in Dying v. Washing-

ton, 79 F.3d at 838 n.140 (noting that family members

and others may also be involved in facilitating an assisted

suicide ). For these reasons, one must reject the claimed

“right to die” or to “control the time and manner of one’s

death. Stripped of euphemism, what is at stake here is

a claimed “right” to enlist the aid of others in committing

suicide. There is no such right.

B. Planned Parenthood v. Casey Does Not Alter the

Due Process Methodology or Establish A

Right To

In Planned Parenthood v. Casey, a plurali inion for

this Court characterized abortion as an ers Bo pr per-

18 These amici discuss the difference between assisting suici

de

and rejecting medical treatment in their brief amici curiae i -

v. Quill, No. 96-1858. amici curiae in Vacco

22

al” choice, one “central to personal dignity and au-

mame? Planned Parenthood v. Casey, 505 US. at 851.

“At the heart of liberty,” the plurality wrote, is the right

to define one’s own concept of existence... . . Id. The

court below believed assisted suicide to be constitutionally

protected because it too is “intimate,” “personal, and part

of the “right to define one’s own concept of existence.

The claim leads to absurd results. If a ae a

“personal” and “intimate” to qualify for constitu-

ke nian then the number of interests entitled to

constitutional protection and beyond the scope of state reg-

ulation will be large indeed. A decision to use hallucino-

genic drugs for recreation, engage in a consensual duel,

sell one’s body into prostitution, or any number of other

equally personal and intimate activities currently subject

to state prohibition would be constitutionally Protected.

Furthermore, if the fact that a choice is “intimate and

personal” is enough to guarantee its protection under the

fourteenth amendment, then the asserted right to commit

suicide could not plausibly be confined to the terminally

ill. A decision to commit suicide because of a failing

business or family tragedy would seem just as “intimate

and “personal” as a decision to commit suicide based on

other reasons or no reason. Compassion in Dying v.

Washington, 49 F.3d at 591 (if terminally ill persons have

a right to commit suicide, “every man and woman in the

United States must enjoy” the right—‘“a reductio ad ab-

surdum”), rev'd, 79 F.3d 790 (9th Cir. 1996). The same

could be said of attempts to defend such a right in terms

of the “suffering” of the terminally ill. Other kinds of

human suffering are as “personal” and some are more

long-lasting. In recognition of this fact, the only nation

in the world to experiment for a number of years with

legally permitted euthanasia has quickly moved from cases

of terminal illness to those involving chronic conditions

23

and even purely mental suffering.‘ The “personal” na-

ture of suicide proves nothing because it proves too much.

Indeed, there is an especially strong reason to believe

in this litigious society that such a claimed right to assisted

suicide would not stop with the terminally ill. As Jus-

tice Cardozo observed, any principle tends “to expand it-

self to the limit of its logic.” Benjamin N. Cardozo, Na-

ture of the Judicial Process 51 (Yale University Press

1949). Once any right to assisted suicide is conceded for

any class of persons, it will be impossible to confine the

right to that class. Indeed, if such a right were recog-

nized, it could be argued in the criminal law context that

killing those who cannot be proven to have objected to the

act constitutes no crime at all. This would represent a

180-degree change in the direction of the criminal law to

date. Blackburn v. State, 23 Ohio St. 146, 163 (1873)

(“The lives of all are equally under the protection of the

law, and under that protection to their last moment”) ;

Martin v. Commonwealth, 184 Va. 1009, 1018, 37 S.E.2d

43, 47 (Va. 1946) (right to life is inalienable; con-

sent of victim is no defense). Since all medical conditions

can be placed on a continuum, any distinction based on

the health status of the victim would be subject to chal-

lenge as arbitrary. Other classes of sick or suffering peo-

ple would demand a right to assisted suicide on equal

4 House Judiciary Subcommittee on the Constitution, 104th

Cong., 2d Sess., Physician-Assisted Suicide and Euthanasia in the

Netherlands 6-12, 15-16 (September 1996) (Report of Chairman

Charles T. Canady).

Defining the term “terminally ill” itself has proven to be

problematic. “[S]jeventeen years of experience with State Living

Will statutes that have used ‘terminal condition’ as a prerequisite

to patient directives have demonstrated that ‘terminal’ lacks any

truly objective, operational definition. The terminal requirement is

an... unworkable requirement.” American Bar Association Com-

mission on Legal Problems of the Elderly, Memorandum of Janu-

ary 17, 1992, reprinted in 8 Issues in Law & Medicine 117 (Summer

1992).

24

protection grounds. There is no principled basis for dis-

tinguishing among the “depressed twenty-one year old, the

romantically-devastated twenty-eight year old, the alco-

holic forty-year old. . . .” Compassion in Dying v. Wash-

ington, 49 F.3d at 591, rev'd 79 F.3d 791 (9th Cir.

1996).

Casey is in any event readily distinguishable from cases

involving an asserted right to suicide or assisted suicide.

The stare decisis considerations which led a plurality of

this Court in Casey to reaffirm the “central holding” of

Roe are entirely absent—and indeed, tilt in the opposite

direction—when one turns to assisted suicide. Assisted

suicide not only has no precedent to support it, but is uni-

versally proscribed.

Furthermore, this Court has always permitted abortion

regulation it deemed necessary to protect a woman’s life

and health. E.g., Roe v. Wade, 410 U.S. at 164. It has

even conceded that bans on abortion were more legally

defensible in ages when it was “an inherently hazardous

procedure” for the woman. Id. at 149-50. By contrast,

support of a right to suicide is plainly incompatible with

protection of health because it destroys the subject’s very

life. Suicide is always “an inherently hazardous proce-

dure.” Finally, except in the abortion context this

Court has never ruled that states are constitutionally re-

quired to permit the destruction of innocent human life.

The Court permitted the destruction of unborn children

only because, in its view, they were not persons. Roe, 410

U.S. at 158 (“the word ‘person,’ as used in the Fourteenth

Amendment, does not include the unborn”). No party in

this case contests the fact that the terminally ill are “per-

sons” and so are entitled to the Constitution’s protection.

25

ABOUT THE ROLE AND WLS OF La 8

RULE OF LAW IN THIS

Ours is a Nation founded not simply upon boundless

or unprincipled liberty, but on ordered liberty. Palko v.

Connecticut, 302 U.S. at 325. It follows that one does

not have an absolute right to do with one’s own body, or

anyone else’s, as he or she pleases. Roe v. Wade, 410

US. at 154. The “statute books are replete with con-

stitutionally unchallenged laws against prostitution, sui-

cide, voluntary self-mutilation, brutalizing ‘bare fist’ prize

fights, and duels, although these crimes may only directly

involve ‘consenting adults.’” Paris Adult Theatre I vy.

Slaton, 413 U.S. 49, 68 n.15 (1973). The choice of a

spouse is perhaps the most intimate of choices, but that

For many reasons, the common good counsels strong]

against physician-assisted suicide. Public policy is -

made at the extremes or for the extremes. Medical evi-

psychopathology.” Some, though not the majority,

of persows who request suicide are in pain.” Once these

conditions are treated, however, the demand to end life

ceases.” If we embrace a “right to die” as designed by the

%* See discussion, supra, at 19.

™ See P.J. van der Maas, et al., Euthanasia and Other M

- edical

Decisions Concerning the End of Life 44 (Elsevier Science Publish-

life.” Kathleen M. Foley, The Relationship of Pain and Symptom

Management to Patient Requests for Physician-Assisted Suicide,

6 J. of Pain and Symptom Management 289, 296 (1991).

26

court below, those who would die prematurely by exer-

cising that “right” are those most in need of care and

comfort, those most vulnerable to disparities in economic

and health care resources.”

A New York State Task force that studied this issue

predicted that the poor, the ¢'Jerly, minorities, and those

without access to medical care are more likely to be

encouraged to request “aid” in dying (or have it requested

“for” them by surrogates) than any other class if assisted

suicide is legalized. New York State Task Force on Life

and the Law, When Death is Sought: Assisted Suicide and

Euthanasia in the Medical Context, xii (May 1994).

Others have noted the disproportionate impact that legal-

ization of assisted suicide would have on women. Ameri-

can Association of Suicidology, Report of the Committee

on Physician-Assisted Suicide and Euthanasia, 26 Suicide

& Life-Threatening Behavior 9 (1996 Supp.). It was for

this reason, among others, that the diverse members of

the New York State Task Force on Life and the Law

unanimously rejected the view that the State’s prohibition

against assisted suicide should be altered in any way:

No matter how carefully any guidelines are framed,

assisted suicide and euthanasia will be i

through the prism of social inequality and bias that

characterizes the delivery of services in all segments

of our society, including health care. The practices

will pose the greatest risks to those who are poor,

elderly, members of a minority group, or without

access to good medical care.

1® Individuals treated at centers serving predominantly minority

patients have been found to be three times more likely than others

to receive inadequate pain treatment, with women and the elderly

also more likely to receive poor treatment. C.S. Cleeland, et ai.,

Pain and its Treatment in Outpatients with Metastatic Cancer,

New Eng. J. Medicine 592-6 (1994). “Pain is . . . more likely

78

27

New York State Task Force on Life and the Law, supra

at xii. We need to consider this Court needs to

confront—the larger conseq for education, eco-

nomic reform, the eradication of poverty, discrimination,

and other ills of society if we foster the attitude that, in

the face of seemingly intractable difficulties, it is an

individual's right not only to surrender but to enlist others

of the Select Committee on Medical Ethics 48 (Jan. 31,

1994). It is surely constitutional.

_This case asks plainly how constitutional law and con-

stitutional principle can and should develop over the fore-

seeable future. It asks whether the rule of law, which

traditionally has prevented people from enlisting others

to carry out self-destructive impulses, may crumble in

the face of a newly-minted claim of unbridled autonomy.

It asks whether traditional and valued distinctions in the

law and in medical practice must give way to these new

claims of autonomy—claims which are self-contradi .

for they destroy the very person whose freedom they claim

to maximize. At bottom, this case asks whether the kind

of society we are to become will reflect our deepest values

or none at all. No person or class of persons should be

labeled by our legal system as having a life not worth

living. Our society is made richer through the lives and

well-being >f all.

28

For the foregoing reasons, the judgment of the Ninth

Circuit should be reversed.

Respectfully submitted,

Of Counsel: MARK E. CHOoPKo *

JEFFREY HUNTER MOON General Counsel

Solicitor UNTTED STATES CATHOLIC

MICHAEL F. Moses C )NFERENCE

Assistant General Counsel] 211 Fourth St., N.E.

Washington, D.C. 20017

(202) 541-3300

November 8, 1996 * Counsel of Record