Amicus Curiae Brief — Washington v. Glucksberg

Supreme Court brief1997

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\ WU Zi

Nos. 95-1858 and 96-110

In THE E s

Supreme Court of the United _

OCTOBER TERM, 1996

DENNIS C. Vacco, Attorney General of the State

of New York, et al.,

- Petitioners,

Timothy E. Qui tt, M.D., et ail.,

Respondents.

On Writ of Certiorari to the

United States Court of Appeals

for the Second Circuit

STATE OF WASHINGTON, ef al.,

7 Petitioners,

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

Respondents.

On Writ of Certiorari to the

United States Court of Appeals

for the Ninth Circuit

BRIEF AMICUS CURIAE ON BEHALF OF

MEMBERS OF THE NEW YORK

AND WASHINGTON STATE LEGISLATURES

IN SUPPORT OF PETITIONERS

PAUL BENJAMIN LINTON *

CLARKE D. FORSYTHE

AMERICANS UNITED FOR LIFE

343 S. Dearborn Street Suite 1804

Chicago, Illinois 60604

(312) 786-9494

_November 7, 1996 * Counsel of Record

WILSON - Eres PrinTtiING Co., Inc. - 789-0096 - WASHINGTON, D.C. 20001

TABLE OF CONTENTS

TABLE OF AUTHORITIES ~..002000........ceccccscececseeeseeseeee

INTEREST OF THE AMICT ..02002.2......cccccececceceseeeeennees

SUMMARY OF ARGUMENT 0002 eects

IE Sibbiltrecitnietnentsisinntintimmacninspionnsion dontenagasiee

I. THE LIBERTY LANGUAGE OF THE DUE

Il.

ITI.

IV.

PROCESS CLAUSE OF THE FOURTEENTH

AMENDMENT PROTECTS ONLY THAT

CONDUCT WHICH IS IMPLICIT IN THE

CONCEPT OF ORDERED LIBERTY AND

WHICH, HISTORICALLY AND TRADITION-

ALLY, IS CONSIDERED BEYOND THE

POWER OF THE STATE TO PROHIBIT ..........

THE COMMON LAW OF ENGLAND, AS

RECEIVED BY THE AMERICAN COLONIES,

PROHIBITED SUICIDE AND ATTEMPTED

ITED cncartniicsteinctiinsiteitensnniintescntacasiiiimnasnmermanenasseses

ALTHOUGH THE PENALTIES FOR SUICIDE

AND ATTEMPTED SUICIDE ULTIMATELY

FELL INTO DISFAVOR IN AMERICAN

LAW, THE STATES HAVE RETAINED A

STRONG AND COMPELLING INTEREST IN

THE PRESERVATION OF HUMAN LIFE

AND IN THE PREVENTION OF SUICIDE...

BOTH THE SECOND CIRCUIT AND THE

NINTH CIRCUIT ERRED IN EQUATING

SUICIDE WITH THE REFUSAL OF UN-

WANTED LIFE-SUSTAINING MEDICAL

I ccrccicintnitadinnesnarntiminsiiastncsccemipeiennisinipeantigiaaatwcestintes

APPENDIX—List of the Amici ..20.00.000........cceceeeceeeenes

Page

TABLE OF AUTHORITIES

Cases: Page

Barber v. Superior Court, 196-Cal. Rptr. 484 (Ct.

CD 26

Bartling v. Superior Court, 208 Cal. Rptr. 220

(CR, ABD. 1986) .2.ccr-cccccerecesesscecesenesvesonrnencemstnansensins 26

Benard v. Protected Home Circle, 146 N.Y.S. 282

(Amp. Div. 1916) .....2.00.cr-ccosvsccerssovessensnessonsvevenssees 16

Bigelow v. Berkshire Life Ine. Co., 98 U.S. 284

| a 16

Blackburn v. State, 28 Ohio St. 146. (1872) ........... 20

Bohaker v. Travelers Ine, Co., 102 N.W. 342 (Maas.

on EEE Lo 16

Bouvia v. Superior Court, 225 Cal. Rptr. 297 (Ct.

BBD... WOBE)D .....-~202--.002000-s2errcr-nernnevesnseeneseessessassrsssssorss 26

Bowers v. Hardwick, 478 U.S, 186 (1986) ............... 6

Brophy v. New Bngland Sinaé Hospital, Inc., 497

N.E.2d 626 (Mass. 1986) 2...0....00..020.cc00ccceeeeees 27

Brown v. Metropolitan Life Ins. Co., 7 N.W.2d 21

CBW BOG) ...0n.0cceeenrecccvscercarsocrsosesecssssvsossnsveosoreresers 16

Campbell v. Supreme Conclave Improved Order

Heptasophs, 49 A. 550 (N.J. 1901)....................... 16

Chanslor v. State, 697 S.W.2d. 398 (Tex. Cr. App.

BOGIIDD eneecesnccocessseceitoesniecsensinacctinssecittinientntmeiamen 21

Collins v. City of Harker Heights, Texas, 503. U.S.

Tf) ee ee 5

Commonwealth v. Bowen, 138 Mass. 356 (1816)... 18

Commonwealth v. Hicks, 82 S.W. 265 (Ky. 1904).. 18

Commonwealth v. Mink, 123 Mass. 422. (1877).... 16, 18

Commonwealth v. Swartzentruver, 389 A.2d 181

CH, Beane, TOG anccnnevvnceccceveccccvoncosessscosscscssecseneess 21

Commonwealth v. Wright, 11 Pa. D. 144 (Ct.

Quarter Sess., Phil. County 1902) ......................... 14

Compassion in Dying v. State of Washington, 79

F.3d 790: (9th Cir. 1996) 0.020.000 cceeeees passim

Compassion in Dying v. State of Washington, 85

F.3d 1440 (9th Cir. 1996) —..002 ee 9, 25

Connecticut Mut. Life Ins. Co. v. Groom, 86 Pa.

GB CIBIDD cccccccstscssssticnsssnitiininimini 14, 19

Crook v. State, 160 So.2d 884 (Ala. 1963) ............... 17

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

TB. BBR CICOOD cnceneecescmtmnsnniienl passim

—-

ili

TABLE OF AUTHORITIES—Continued

De Grella by and through Parrent v. Elaton, 858

S.W.2d 698 (Ky. 1993) |

Dickerson v. Northweatern Mut. Life Ine. Co. 65

N.E. 694 (Ill. 1902) |

Dugan »v. areunemmemaan 333 ‘$.W.2d 155 (Ky.

1960) .

Edinburgh ». v. State, 896 P.2d 1176 (Okla. Cr. App.

)

Richner v. Dillon, “426 N.Y.S.2d 517 (App. ‘Div.

1980), aff'd as modified sub nom. In re Storar,

420 N.E.2d 64 (N.Y. 1981) .

Elwood v. New England Mut. Life Ine. Co., 158

A. 257 (Pa. 1981) ..............

FCC wv. Beach Communications, Ine., 508 U.S. 307

(1993) ........

Foamire v. Nicoleau, 551 N.E.2d 77 (N.Y. 1990)

Gentry v. State, 625 N.E.2d 1268 (Ind. App.

1994) |

Gilbert v. "State, 487 So.2d 1185, (Fla. Dist. Ct.

App. 1986), rev. denied, 494 So.2d 1150 (Fla.

1986)

Gladden v. State, 230 A.2d 176 (Md. 1974)

Goodin v. State, 726 S.W.2d 956 (Tex. Cr. App.

1987) ..

— reck ¥. ‘State, 666 So.2d 835 ( Ala. Cr. App.

)

Grand Lodge of Minois, Indep. Order of Mut. Aid

v. Wieting, 48 N.E. 59 (TIl. 1897)

Guardianship of Doe, 583 N.E.2d 1262 (Maas.

1992), cert. denied auh nom. Doe v. Groaa, 503

U.S. 950 (1992)

Hale v. Life Indemnity & Investment Co., 63 N. W.

1108 (Minn. 1895) .....

Hales v. Petit, 1 Plowd. 253, 15 Eng. Rep 387

(Queen’s Bench 1561-1562)

Hinson v. State, 709 S.W.2d 106 (Ark. App.

1986) .

In re Application of Keddie, 1990 WESTLAW 96595

(Del. Super. 1990)

Page

14, 16

TABLE OF AUTHORITIES—Continued

Page

In re Colyer, 660 P.2d 738 (Wash. 1983) ................ 26

In re Estate of Longeway, 549 N.E.2d 292 (Ill.

ES ee a a a 27

In re Farrell, 529 A.2d 404 (N.J. 1987) ................. 27

In re Fiori, 673 A.2d 905 (Pa. 1996) ........ ileatieneaill 27

In re Gardner, 5384 A.2d 947 (Me. 1987) .............. 27

In re Guardianship of Browning, 568 So.2d 4 (Fla.

REN eee mE Uae 26

In re Guardianship of Grant, 747 P.2d 445 (Wash.

1987), modified, 757 P.2d 5384 (Wash. 1988) . 27

In re Joseph G., 667 P.2d 1176 (Cal. 1983) .......... 21

In re Lawrance, 579 N.E.2d 32 (Ind. 1991) ........... 27

In re L.W., 482 N.W.2d 60 (Wis. 1992) .............. Pe: 27

In re P.V.W., 424 So.2d 1015 (La. 1982) ................ 27

In re Quinlan, 355 A.2d 647 (N.J. 1976), cert.

denied sub nom. Garger v. New Jersey, 429 U.S.

LR ee IE i a a 25

In re Rosebush, 491 N.W.2d 633 (Mich. App.

ISI AE BS SE OE, se 27

In re Thomas C., 228 Cal. Rptr. 430 (Ct. App.

Re rere ees Ae od 22

John Hancock Mut. Life Ins. Co. v. Moore, 34

EE ee Se is 18

Leach v. Akron General Medical Center, 68 Ohio

Mise. 1 (1980) .. a 27

Life Ass'n of America v. - Waller, ‘BT Ga. 533

GERI ior cochatisiisstitetesieniiiacia siecle eames aoa pa LS 13, 16, 18

Manhattan Life Ine. Co. v. Beard, 66 S.W. 35 (Ky.

OTE SLE ETO: LIPO SA MOE IN STs 16

Martin v. Commonwealth, 37 S.E.2d 43 (Va.

re ee a St NY ee 22

McConnell v. Beverly Enterprises, Inc., 553 A.2d

I ee. ee 26

McKay v. Bergstedt, 801 P.2d 617 (Nev. 1990). 27

McMahan v. State, 53 So. 89 (Ala. 1910) ............ 16, 17

Moore v. City of East Cleveland, Ohio, 431 U.S.

Ge. GOD ieneciniiiniitlinitiinini em ee 6, 7, 23

Palko v. Connecticut, 302 U.S. 319 (1987) .......... 6,28

TABLE OF AUTHORITIES—Continued

Page

Patterson v. Natural Premium Mut. Life Ins. Co.,

75 N.W. 980 (Wis. 1898) ...............------ ee. 16

eee Mut. Life Ins. Co. v. Cobbs, 123 So.

94 (Ala. App. 1929) . 16

People v. Cleaves, 280 Cal. ‘Rptr. 146 (Ct. “App.

Pe alin in ae GIR Be Cs eas Ee a 21

People v. Conley, 411 P.2d 911 (Cal. 1966) Aa heat 22

People v. Duffy, 595 N.E.2d 814 (N.Y. 1992)... 21

People v. Kevorkian, 527 N.W.2d 714 (Mich. 1994),

cert. denied sub nom. Kevorkian v. Michigan,

115 S.Ct. 1795 (1995), Hobbins v. — 115

S.Ct. 1795 (1995) ... _.... passim

People v. Matlock, 836 P.2d 505 (Cal. 1959) . 22

People v. Roberts, 178 N.W. 690 (Mich. 1920) _. 19

Persampieri v. Commonwealth, 175 N.E.2d 387

(Mass. 1961) . 21

Phadenhauer v. Germania Life Ine. Co., “64 Tenn.

(7 Heisk.) 567 (1872)... Sa, TF

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

(1992) . _ passim

Plunkett v. “Supreme Conclave, ‘Improved Order of

Heptasophs, 55 S.E. 9 (Va. 1906) . 16,19

Poe v. Ullman, 367 U.S. 497 (1961) ..................... 7

Pope v. State, 396 A.2d 1054 (Md. 1978)... 18, 18

Potts v. Barrett Div., Allied Chem. & Dye Corp.,

138 A.2d 574 (N.J. Super. 1958) ... ........ 14, 16

Quill v. Vacco, 80 F.3d 716 (2d Cir. 1996) 2, 4, 23

Ragan v. State, 599 So.2d 276 (Fla. Dist. Ct.

1992) .. 22

Raemuscen ' v. ). Fleming, 741 P.2d 674 (Ariz. 1987). 26

wy v. Alison, 8 Car. & P. 418, 173 Eng. Rep.

ace sie aramne ca nla eR certo 12

Regina v. Burgess, 9 Cox. Crim. Cas. 247, 169

PS i OEE 13

Regina v. Doody, 6 Cox Crim. Cas. 463 (1854) 13

Regina v. Gaylor, 1 Dears. & B. 288, 169 Eng. atid

Eg ES Pees ee 12

Regina v. Jessop, 16 Cox Cr. Cas. 204 (1887) ......... 12

TABLE OF AtITHORITIES—Continued

Page

Regina v. Moore, 8 Car. & K. 319, 175 Eng. Rep.

B71 (1BBB) .--..---. ---cencerensnreneneeneneensnnensnnsnnensnnsnenoees 13

Regina v. Stormonth, 61 J.P. 729 — TTT 12

Reno v. Flores, 507 U.S. 292 (1993) .......... RO Bee 5

Rex v. Abbott, 67 J.P. 151 (1903) -...................--. 12

Rex v. Dyson, Russ. & Ry. 523, 168 Eng. Rep. 930 m

=D ea

ae v. - fe 2 K.B. 107, 83 L.J.K.B. 648 (1914)... 13

Roe v. Wade, 410 U.S. 113 (1973) ...............----- 6,7

Rodriguez v. British Columbia (Attorney General),

[1993] 3 S.C.R. 519 .............. Bsns See 29-30

Satz v. Perlmutter, 362 So.2d 160 (Fla. Dist. Ct.

App. 1978), aff'd, 379 So.2d 359 (Fla. 1980)... 26-27

Shipman v. Protected Home Circle, 67 N.E. 83

I PLES aie: Ma 16

Snyder v. Massachusetts, 291 U.S. 97 5

State v. Alley, 594 S.W.2d 381 (Tenn. 1980) ........... 19

State v. Bauer, 471 N.W.2d 363 (Minn. App.

| ee ailhailea 21

State v. Bier, 591 P.2d 1115 (Mont. 1979) .............. 21

State v. Bouse, 264 P.2d 800 (Or. 1953) —............. m 22

State v. Brewton, 395 P.2d 874 (Or. 1964) —............ 22

State v. Buchanan, 5 H. & J. 317 (1821) ~............ as 18

State v. Carney, 55 A. 44 (N.J. 1903) ...................-- 15, 16

State v. Cobb, 625 P.2d 1133 (Kan. 1981) .............. 22

State v. Fischer, 376 P.2d 418 (Or. 1962) -............ 22

State v. Fuller, 278 N.W.2d 756 (Neb. 1979) ........... 22

State v. General Daniel Morgan Post No. 548, 1

S.E.2d 3538 (W. Va. 1959) ..............-.... ane ib 20

State v. Jones, 67 S.E. 160 (S.C. 1910) ....... rere 20

State v. Lafayette, 188 A. 918 (N.J. Common Pleas

BOTT nnnnnennneeesevnencecenenencemenseewsnsnseserencensrennnscnionsceaswonnss 15

State v. Levelle, 13 S.E. 319 (S.C. 1891) _............ . 16, 20

State v. Ludwig, 70 Mo. 412 (1879) .....................--. 22

State v. Marti, 290 N.W.2d 570 (Ia. 1980) ............ 21

State v. Mays, 307 S.E.2d 655 (W. Va. 1983) ....... 22

State v. Sexson, 869 P.2d 301 (N.M. 1994) .......... 21

State v. Stanislaw, 573 A.2d 286 (Vt. 1990) ........... 20

State v. Torrence, 406 S.E.2d 315 (S.C. 1991)........ 16

vii

TABLE OF AUTHORITIES—Continued

State v. Willis, 121 S.E.2d 854 (N.C. 1961)

1975), cert. denied, 424 U.S. 954 (1975)

Saikewicz, 370 N.E.2d 417 (Mass. SEE

Thor v. Superior Court, 855 P.2d 875 (Cal. 1993) ..

Turner v. State, 108 S.W. 1139 (Tenn. 1907)

United States v. Rutherford, 442 U.S. 544 ( 1979)...

Vaux'’s Case, 4 Co. Rep. 44a, 76 Eng. Rep. 992

I er ee ea

Wackwitz v. Roy, 418 S.E.2d 861 (Va. 1992)

Wallace v. State, 116 N.E.2d 100 (Ind. 1953)...

Wyckoff v. Mut. Life Ins. Co. of N.¥., 147 P.2d

227 (Or. 1944)

Statutes:

Alabama:

ALA. DIGEsT, tit. 17, ch. 1, §45, at 214 (H.

SEE ES IS ARE re ea

PENAL Cope, No. 138, ch. 3, § 2, 1840-41 Ala. Acts

122 (codified as Supplement to AIKEN’s DIGEST

PENAL CODE, ch. 3, § 2, at 210 (A. Meek ed.

EE a ae aE

ALA. CODE § 13A-3-24(4) (1994)

ALA. CODE § 13A-6-3 (1994) and Commentary

ALA. CODE § 22-8A-10 (1990)

Alaska:

ALASKA STAT. § 11.41.120(a) (2) (Michie 1989)

ALASKA StaT. § 11.81.430(a) (4) (Michie 1989)

ALASKA STAT. § 18.12.080(f) (Michie 1994)

Arizona:

ARIZ. REV. STAT. ANN. § 13-403(4) (West 1989) ..

ARIZ. REV. STAT. ANN. § 13-1103(A) (3) (West

Re NE ctialasnssthieamcinteriaieimmetieide te

ARIZ. REV. STAT. ANN. § 36-3210 (West Supp.

1995) -

oot eweee

POPS S OSSD SOS SSDS SOS OSSSOSOSOOSS SSS SOSSOS OS OSOOCCCSOSSS

TTT Oe Hee Oe HORS TOPO CeCe ee cece

ET SE eee

State ex rel. Swann v. Pack, 527 8.W.2d 99 (Tenn.

Superintendent of Belchertown State School v.

viii

TABLE OF AUTHORITIES—Continued

Arkansas: Page

Act of Feb. 16, 1838, printed as ARK. REV. STAT.

ch. XLIV, div. III, art. I], § 4, at 240 (1838)... 17

ARK. CODE ANN. § 5-2-605(4) (Michie 1993) .......... 21

ARK. CODE ANN. § 5-10-104(a) (2) (Michie 1993) .. 19

ARK. CODE ANN. § 20-17-210(g) (Michie 1991) ....... 24

California:

CAL. HEALTH & SAFETY CODE § 7191.5(g) (West

Ee ES A 24

CAL. PENAL CODE § 401 (West 1988) .................... 19

Colorado:

CoLo. REV. STAT. § 15-18-112(1) (West 1987) —...... 24

CoLo. REV. STAT. § 18-1-703(1) (d) (West 1990) .. 21

CoLo. REV. STAT. § 18-3-104(1)(b) (West Supp.

Se icuecitabiaciedaa iia lammiaasaetiaaeai italia 19

Connecticut:

CONN. GEN. STAT. ANN. § 19a-575 (West Supp.

ctrinntitnsnesittitradanesitisatetitetnianiameeeilitatiliaid 25

CONN. GEN. STAT. ANN. § 53a-18(4) (West 1994)... 21

CONN. GEN. STAT. ANN. § 53a-56(a)(2) (West

IT secrtieninititeencincatinemenannneedintenteneniiinlieaa adel 19

Delaware:

DEL. Const. art. 1, § 15 (1792) ..... a we 14

Act of July 12, 1982, § 3, 63 Del. Laws 821 (1981).. 25

DEL. CODE ANN. tit. 11, § 467(e) (1995) 0. 21

DEL. CoDE ANN. tit. 11, § 645 (1995) 0... 19

Florida:

Act of Aug. 6, 1868, ch. 1637 (No. 13), subchap. 3,

§ 9, 1868 Fla. Laws 61, 64 000. 17

FLA. STAT. ANN. § 765.309(1) (West Supp. 1996)... 24

FLA. STAT. ANN. § 782.08 (West 1992) ........... 19

Georgia:

GA. CODE ANN. § 16-5-5(b) (1996) 0.0. 19

GA. CopE ANN. § 31-32-11(b) (1996)... 24

Hawaii:

Haw. REV. StaT. § 327D-13 (Supp. 1992) ................. 24

Haw. REV. STAT. § 703-308(1) (1985) 0.00000. 21

TABLE OF AUTHORITIES—Continued

Page

Idaho:

IDAHO CODE § 18-303 (1987) ........-2....0..cccccceeeceee oa 20

IDAHO CopE § 39-152 (Supp. 1996) .........000.... 25

Illinois:

ILL. Comp. STAT. ANN. ch. 720, § 5/12-31(a) (2)

(Smith-Hurd Supp. 1996) ~~... 19-20

ILL. Comp. STAT. ANN. ch. 755, § 35/9(f) (Smith-

EES e cane nO 24

ILL. Comp. STAT. ANN. ch. 755, § 40/60 (Smith-

ESI ee aR Ls SER CS RR 25

Indiana:

IND. CODE ANN. § 16-36-1-12(c) (Michie 1993) ....... 25

IND. CODE ANN. § 16-36-1-13 (Michie 1993) ....... Sarai 25

IND. CODE ANN. § 16-36-4-19 (Michie 1993) ............. 24

IND. CODE ANN. § 30-5-5-17(b) (Michie Supp.

SITE ccnctcennsertunetnteianedectntatiinledtnndiniocnsitbilisiniinattinshinitit 25

IND. CODE ANN. § 35-42-1-2.5(b) (Michie Supp.

ST ’ cotciscdtiidinninatiansinseteadisenigiveginceednetiendenmmipatiiaiaineds

Iowa:

1owA CoDE ANN. § 144A.11.6 (West 1989) ............... 24

Iowa CODE ANN. § 144B.12.2 (West Supp. 1996) .... 25

Iowa S.F. 2066, to be codified as lowa CoDE ANN.

a al 20

Kansas:

KAN. TERR. STAT. ch. 48, § 8 (1855) .................. la 17

KAN. STAT. ANN. § 21-3406 (1995) 2.00... 20

KAN. STAT. ANN. § 65-28,109 (1992)...

Kentucky:

Ky. REV. STAT. ANN. § 216.302 (Michie 1995) ..........

Ky. REv. STAT. ANN. § 311.639 (Michie 1995) ......... 24

Ky. REV. STAT. § 503.100(1) (a) (Michie 1990) ....... 21

Louisiana:

LA. REV. STAT. ANN. § 14:32.12 (West Supp.

RR es OR ae A ee ee ee a ene aN 20

LA. REv. STAT. ANN. § 40:1299.58.10(A) (West

TT tiieoetthenenniiettipsetatliiabthaiipaataaiadhaaeatiaterntiatitemienaememngueness 24

TABLE OF AUTHORITIES—Continued

Maine:

ME. REV. STAT. ANN. tit. 17-A, § 106(6) (West

TIT a aciinsiccentnra si tentselctanataieeatneataalcstihiiiiainatind ai eaeninian

ME. REV. STAT. ANN. tit. 17-A, § 204 (West 1983)..

ME. REV. STAT. ANN. tit. 18-A, § 5-813(c) (West

I, TD eccccocenssssocresisvsuntntoviititiseniatindinanebagtininenians

Maryland:

Mp. ConsT., Declaration of Rights § 24 (1776) .......

Mp. HEALTH-GEN. CODE ANN. § 5-611(c) (1994)...

Massachusetts:

Mass. GEN. LAWS ANN. LAW, ch. 201D, § 12 (West

SS eee

Michigan:

Cass CopE of 1816, Crimes § 58, reprinted in 1

MicH. TERR. LAWS 132-33 (1871) ........................

Micu. Comp. LAWS ANN. § 700.496(20) (West

ES ee See

MicnH. Comp. LAWS ANN. § 750.505 (West 1991)...

Minnesota:

MINN. PENAL Cope, §§ 143, 147 (1885), codified as

MINN. GEN. STAT. §§ 6428, 6432 (1894), recodi-

fied as MINN. REv. LAws, § 4870, repealed by an

Act of Apr. 20, 1911, ch. 293, § 1, 1911 Minn.

A CD a ciniersiasterinditaniicitaicinitasanstdiinainndlaacainiamnitiatine

MINN. TERR. REV. STAT. ch. 100, § 9, at 493 (1851)..

MINN. STAT. ANN. § 145B.14 (West Supp. 1996)..

MINN. STAT. ANN. § 609.06(8) (West 1987) ............

MINN. STAT. ANN. § 609.215 (West 1987 and Supp.

SS Sn eee en oe

Mississippi:

Act of Feb. 15, 1839, ch. 66, tit. 3, § 7, 1839 Miss.

Laws 102, 112, codified as Miss. CopDE ch. 64, art.

12, tit. 3, § 7, at 958 (Hutchinson 1849) ..............

Miss. CoDE ANN. § 41-41-117(2) (1993) —...............

Miss. CopE ANN. § 97-3-49 (1994) —.......000......-.0-......

Page

—— ee

TABLE OF AUTHORITIES—Continuea

Missouri:

Act of Mar. 20, 1835, art. II, codified as Mo. REV.

STAT. Crimes & Punishments, art. II, § 8 at 168

I a i

Mo. ANN. STAT. § 459.055(5) (West 1992)...

Mo. ANN. STAT. § 563.061(5) (West 1979)

Mo. ANN. STAT. § 565.023.1(2) (West Supp. 1996) ..

Montana:

MONT. CODE ANN. § 45-5-105 (1995)

MONT. CODE ANN. § 50-9-205(7) (1995)

Nebraska:

NEB. REV. STAT. ANN. § 20-412(7) (Michie 1995)..

NEB. REV. STAT. ANN. § 28-307 (Michie 1995)

NEB. REV. STAT. ANN. § 28-1412(7) (Michie 1995) ..

Nevada:

Crimes & Punishments Act of 1911, § 115, codified

as NEV. REV. LAWs § 6380 (1912), repealed hy

an Act of Mar. 25, 1913, ch. 238, § 1, 1913 Nev.

a a Se LTS eee ee

Act of Mar. 4, 1957, ch. 35, § 1, 1956-57 Nev. Stat.

59, 59-60, repealed by an Act of Mar. 31, 1961,

ch. 256, § 1, 1961 Nev. Stat. 416, 416

NEV. REV. STAT. ANN. § 449.670(2) (Michie 1991)

New Hampshire:

N.H. Const. pt. 2, art. 89 (adopted 1789)...

N.H. REv. STAT. ANN. § 137-H:13 (1996)...

N.H. REv. STAT. ANN. § 627:6(VI) (1996)...

N.H. REV. STAT. ANN. § 630.4 (1996) 0... 3

New Jersey:

RR 4 FY Fae

Act of May 9, 1957, ch. 34, § 1, 1 N.J. Laws 63, 67

(1957), codified as N.J. REv. STAT. § 2A :170-25.6

(Supp. 1967), repealed by an Act of Feb. 16,

1972, ch. 450, § 3, 1971 N.J. Laws 1934

N.J. STAT. ANN. § 2C :3-7(e) (West 1995)

N.J. STAT. ANN. § 2C:11-6 (West 1995)

Page

xii

TABLE OF AUTHORITIES—Continued

N.J. STAT. ANN. § 26:2H-54(d) (West 1996) .........

N.J. STAT. ANN. § 26:2H-54(e) (West 1996) ...........

New Mexico:

N.M. STAT. ANN. ste heiatitchid (Michie Supp.

by asia cilmee enamels ltiialactltaeiadmateanesiaesiaiedeeeiiaasandamaandetes

New York:

Act of July 26, 1881, ch. 676, §§ 174, 178, 1881 N.Y.

Laws (Vol. 3 Penal Code) at 42-43, repealed by

an Act of May 5, 1919, ch. 414, §1, 1919 N.Y.

‘Laws 1193, 1193.

2 N.Y. RE’. STAT. pt. Iv, ch. L tit. L art. 1 Stat

661 (1829) .

N.Y. MENTAL Hyc. ‘Law 89. 01 (McKinney 1996).

N.Y. PENAL LAw § 35.10(4) (McKinney 1987) .......

N.Y. PENAL LAw § 120.30 (McKinney 1987) ............

N.Y. PENAL LAw § 125.15(3) (McKinney 1987) .....

N.Y. Pus. HEALTH LAW amma (3) (McKinney

North Carolina:

N.C. Laws, ch. XXXI, § VI (1715), reprinted in 1

THE FIRST LAWS OF THE STATE OF NORTH CARO-

LINA (John D. Cushing ed. 1984) .

N.C. Laws, ch. V, § II (1778), reprinted 4 in r1 THE

First LAWS OF THE STATE OF NORTH CAROLINA

(John D. Cushing ed. 1984) ...............................-...

N.C. Laws, ch. XXXI (1787), reprinted in 2 THE

First LAWS OF THE STATE OF NORTH CAROLINA

(John D. Cushing ed. 1984) —........................ pele

N.C. GEN. STaT. § 14-1(1) (1998) ...............................

N.C. GEN. STAT. § 90-320(b) (1993) .......... a

North Dakota:

G. Hand, REV. CODES OF THE TERRITORY OF DAKOTA,

Penal Code §§ 230, 236 (1877), repealed by an

Act of Mar. 4, 1967, ch. 108, § 1, 1967 N.D. Sess.

Laws 215, 300 . shiieiesicanaansdidbiticuetieiadiaiansilindaiaiai

SSERS

xiii

TABLE OF AUTHORITIES—Continued

N.D. CENT. CopE § 12.1-05-05(5) (1985) 000000000000.

N.D. CENT. CoDE § 12.1-16-04 (Supp. 1995)...

N.D. CENT. CopE § 23-06.4-01 (1991)

N.D. CENT. CoDE § 23-06.5-01 (1991) 0.

Ohio:

OnI0 REV. CopE ANN. § 2133.12(D) (Anderson

RR Rr ce TE, i SA

Oklahoma:

OKLA. TERR. STAT. 2076 (1890), repealed by an Act

of Jan. 30, 1976, ch. 6, § 2, 1976 Okla. Sess. Laws

OKLA. STAT. ANN. tit. 21, § 643(6) (West 1996)

OKLA. STAT. ANN. tit. 21, § 813 (West 1983)

OKLA. STAT. ANN. tit. 21, § 814 (West 1983).

OKLA. STAT. ANN. tit. 21, § 815 (West 1983)...

OKLA. STAT. ANN. tit. 63, §3101.12(G) (West

I II secehniaeii citer leaden eras actin

Oregon:

Or. GEN. LAWS 1845-1864 (Deady 1866), Code of

Crim. Proc. § 508 at 528 .. M =e

Or. REV. STAT. § 127.800 (Supp. 1996) . ae: oii aial

Or. REV. STAT. § 161.205(4) (1998) ....00 ‘

Or. REv. STAT. § 163.125(1) (b) (1993) 000.

Pennsylvania:

Pa. Cons. STAT. ANN. tit. 18, § 508(d) (West

ene

Pa. CONS. STAT. ANN. ‘tit. 18, § 2505(b) “(West

aT REID i eed 8 ot 65: ea

Pa. Cons. STAT. ANN. tit. 20, = (West

Supp. 1996) . sihadinapilgsetiin inivinaiieaeetill

Rhode Island:

THE EARLIEST ACTS AND LAWS OF THE COLONY OF

RHODE ISLAND AND PROVIDENCE PLANTATIONS,

1647-1719 (John D. Cushing ed. 1977) ............

An Act to reform the penal Laws, § 53 (1798), re-

printed in 2 THE FIRST LAWS OF THE STATE OF

RHODE ISLAND 604 (John D. Cushing ed. 1983)...

RES

xiv

TABLE OF AUTHORITIES—Continued

R.I. Pub. Act 96-113, to be codified as R.1. GEN.

RS ee

R.I. GEN. LAWS § 23-4.10-9(f) (Supp. 1995) .............

R.I. GEN. LAWs § 23-4.11-10(f) (Supp. 1995) .....

South Carolina:

1 THE EARLIEST PRINTED LAWS OF SOUTH CARO-

LINA 1692-1734 (John D. Cushing ed. 1978) .......

S.C. Acts, No. 253, § VI (Apr. 9, 1706), reprinted

in 1 THE EARLIEST PRINTED LAWS OF SOUTH

CAROLINA, 1692-1734 (John D. Cushing ed.

1978) . PS ee oe ns ee RS

S.C. Cone “ANN. § 16-1-110 (Law. Co-op. Supp.

GENER EE I aes Oe ee

S.C. CoDE ANN. § 44-77-130 (Law. Co-op. Supp.

DE od dt eeieeit eee See ee ee

South Dakota:

G. Hand, REV. CODES OF THE TERRITORY OF DAKOTA,

Penal Code §§ 230, 236 (1877), recodified as S.D.

CopE § 13.1908 (1939), repealed by an Act of

Feb. 17, 1968, ch. 31, § 1, § 13.1901, 1968 S.D.

Sess. Laws 47, 47 .......... Piva oO ee OS ES

S.D. CopirreD LAWS ANN. § 22-16-37 (Michie

1988) .

S.D. CopIFIED LAWs. ANN. “§ $4-12D-20 “(Michie

EES iilindilcnitib pea eRe Tt silastic ta

Tennessee:

TENN. CODE ANN. § 39-11-613 (1991) 2.000000...

TENN. CODE ANN. § 39-13-216 (Supp. 1995) .........

Texas:

Tex. HEALTH & SAFETY CODE ANN. § 672.020

(West 1992) . as

TEx. PENAL CopE ANN. § 9. 34(a) (West 1994) . dita

Trex. PENAL CODE ANN. § 22.08 (West 1994) ...........

Utah:

UTAH Cope ANN. § 75-2-1118 (1993) 0.

TABLE OF AUTHORITIES—Continued

Vermont:

VT. STAT. ANN. tit. 1, § 271 (1996) —.....000000000.......

Virginia:

Act of Mar. 14, 1848 (Criminal Code), tit. II, ch.

XI, §§ 23, 25, 1847-48 Va. Laws 124 ...

VA. CODE ANN. § 18.2-16 (Michie 1996)...

VA. CODE ANN. § 54.1-2990 (Michie 1994) .............

Washington:

CRIM. CopE, ch. 249, § 134, 1909 Wash. Laws 11th

Sess. 890, 929, codified as Rem. & BAL. CopE

§ 2386 (1910), repealed by WASH. CRIM. CopE,

1975, ch. 260, § 9A.92.010(213)-(217) Wash.

Laws 817, 866, codified as REV. WASH. CopE

§ 9A.92.010(213)-(217) (1977) 0...

WASH. REV. CopE ANN. § 9A.36.060 (West 1988) .

WASH. REV. CopE ANN. § 70.122.100(West Supp.

REET ree Til RIBS BS 0 eh

WASH. REV. CODE ANN. § 71.05.020 (West 1992) .

West Virginia:

W. VA. Cope § 16-30-10 (1995)

Wisconsin:

REVISED STAT. OF THE STATE OF WiIs. ch. 133, § 9

(Albany, N.Y. 1849), codified as REV. STAT. oF

ck BS FRR renee

Wis. STAT. ANN. § 154.11(6) (West 1989)...

Wis. STAT. ANN. § 939.48(5) (West 1996)...

Wis. STAT. ANN. § 940.12 (West 1996)...

Wyoming:

Wyo. STAT. § 3-5-211 (Michie Supp. 1996) .............

Wyo. STAT. § 35-22-109 (Michie 1994) ...................

Other Authorities:

4 Wm. Blackstone, COMMENTARIES ON THE LAWS

IY TINIE cio ccindastdbieriinctitiedacausbcencndeslibcitdnnasns

Booth, Woodruff, Mather, Baldwin & Turrill, Pre-

face to CONN. GEN. STAT. (1875) 00.

2 H. de Bracton (c. 1250), ON THE LAWS OF ENG-

LAND (S. Thorne trans. 1968) 2.2.0.0...

13, 17

xvi

TABLE OF AUTHORITIES—Continued

Page

I BRITTON, Bk. I, ch. VIII (F. Nicols trans. 1865)

(reprinted 1983, W.W. Gaunt) 0.000.000... 9-10

E. Coke, THIRD INSTITUTE OF THE LAWS OF ENG-

EAB CRGOE GED cccecnacervequeniprsinticessienisidiiptammeninie 10-11

Note, Criminal Liability of Participants in Sui-

cide: State v. Williams, 5 Mp. L. Rev. 324

§_, ) RRR EE 13, 18

E. East, 1 PLEAS OF THE CROWN (1803) (1972

| NS we Pe 11

Fleta (c. 1290), Bk. I, ch. XXXIV, “Of Suicides,”

Publications of the Selden Society, Vol. 72

(ae eee 10

THE GENERAL LAWS AND LIBERTIES OF MASSACHU-

SETTS COLONY (1672), repinted in THE COLONIAL

LAWS OF MASSACHUSETTS (W. Whitmore ed.

BEDE D <cceccsssnssntapcraptibindianediidiie 13

Edward R. Grant and Paul Benjamin Linton, Re-

lief or Reproach? Euthanasia Rights in the Wake

of Measure 16, 74 OREGON L. REV. 449 (1995)... 29

M. Hale, 1 HISTORY OF THE PLEAS OF THE CROWN

CTI wccessccsvecsteinesstineimsansiniedammeiaanasa ne 11

Wm. Hawkins, 1 A TREATISE OF THE PLEAS OF THE

CROWN (1716) ....... Ne ee 11

Thomas J. Marzen, Mary K. O’Dowd, Daniel Crone

and Thomas J. Balch, Suicide: A Constitutional

Right? 24 DUQUESNE L. REV. 1 (1986) ....00000... 8-9

MODEL PENAL CODE § 210.502) 220.00.....cccccccceeeeeeeeeeee 22

A. Scott, CRIMINAL LAW IN COLONIAL VIRGINIA

CHIP nesstocgssusctentsdiavticssiiduemsmmiiiilcs ae 14, 19

2 Z. Swift, A DIGEST OF THE LAWS OF THE STATE

OF CONNECTICUT (New Haven 1823) 2000000000000... 18

2 Z. Swift, A SYSTEM OF LAWS OF THE STATE OF

CONNECTICUT (n.p. 1796) (reprinted 1972) ......... 13

Wall Street Journal, May 1, 1996 ......000000000.0 00... 21

WHEN DEATH Is SOUGHT[ :] ASSISTED SUICIDE AND

EHTHANASIA IN THE MEDICAL CONTEXT, New

York State Task Force on Life and the Law

+ 2 | ee er 1, 27-28

INTEREST OF THE AMICI

Amici curiae are New York and Washington state legis-

lators who strongly support the public policy expressed

in their state laws prohibiting assisted suicide and who

vigorously oppose efforts to legalize assisted suicide in the

legislatures or the courts. Amici firmly believe that there

is no social, economic or medical need to permit physician-

assisted suicide under any circumstances, and that to allow

suicide assistance, even for mentally competent, termi-

nally ill adults, would lead to grave abuses and exploita-

tion of the most vulnerable members of our community,

as it already has in the Netherlands. Amici fully concur

with the warning of the New York State Task Force on

Life and the Law that creation of a right to suicide “would

carry us into new terrain.”

American society has never sanctioned suicide or

mercy killing. We believe that the practices would

be profoundly dangerous for large segments of the |

population, especially in light of the widespread fail-

ure of American medicine to treat pain adequately

or to diagnose and treat depression in many cases.

The risks would extend to all individuals who are

ill. They would be most severe for those whose

autonomy and well-being are already compromised

by poverty, lack of access to good medical care, or

membership in a stigmatized social group. The risks

of legalizing assisted suicide and euthanasia for these

individuals, in a health care system and society tha:

cannot effectively protect against the impact of in-

adequate resources and ingrained social disadvantage,

are likely to be extraordinary.

Wuen Deatu Is Soucut[:}] ASSISTED SUICIDE AND

EUTHANASIA IN THE MEDICAL CONTEXT vii-viii (May

1994). This Court should heed their warning and not

recognize a right to suicide or suicide assistance. *

* This Brief is filed with the consent of the parties. Letters of

consent have been lodged with the Clerk of the Court.

SUMMARY OF ARGUMENT

In a pair of unprecedented opinions, the Second Cir-

cuit and the Ninth Circuit have held that New York

and Washington are powerless to prevent mentally com-

petent, terminally ill patients from intentionally ending

their lives with the assistance of physicians who are willing

to prescribe lethal drugs for them. Quill v. Vacco, 80

F.3d 716 (2d Cir. 1996); Compassion in Dying v. State

of Washington, 79 F.3d-790 (9th Cir. 1996). In recog-

nizing a right to commit suicide with the assistance of

third parties, the en banc majority in Compassion in Dy-

ing swept aside a uniform tradition of legal and societal

opposition to suicide and assisted suicide that dates back

to the earliest days of the common law. Contrary to the

Ninth Circuit's opinion, nothing in Planned Parenthood v.

Casey, 505 U.S. 833 (1992), required or allowed the

court of appeals to ignore this history in evaluating plain-

tiffs’ wholly novel constitutional claim.

Compounding this error, both the Ninth Circuit and the

Second Circuit seriously misread this Court's decision in

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

261 (1990). Both courts attempted to derive an interest

in deliberately inducing death, which the law always has

treated as a crime, from the interest in refusing unwanted

medical treatment, which the law traditionally has pro-

tected out of respect for the inviolability of the human

person. Disregarding critical distinctions between intend-

ing a result and knowing that a result is likely, and be-

tween causing death artificially and allowing death to

occur naturally, the lower courts reasoned that because

refusing life-sustaining treatment and intentionally in-

gesting a fatal dose of drugs both result in a person's

death, the right to do the former necessarily entails the

right to do the latter. Quill, 80 F.3d at 725-31; Com-

passion in Dying, 79 F.3d at 820-24. “But constitutional

law does not work that way.” Cruzan, 497 U.S. at 280.

At the outset, amici note that this Court has never

held that “a competent person has a constitutionally pro-

tected liberty interest” in refusing “life-sustaining medical

treatment.” Cruzan, 497 U.S. at 278, 279. In Cruzan,

the Court assumed, for purposes of deciding the case,

that the Constitution “would grant a competent person

a constitutionally protected right to refuse lifesaving hy-

dration and nutrition.” /d. at 279. Nevertheless, the Court

cautioned that “the dramatic consequences involved in the

refusal of such treatment would inform the inquiry as to

whether the deprivation of that interest is constitutionally

permissible,” id., thereby implying that the State's “in-

terest in the protection and preservation of human

life,” id. at 280, might be sufficient to outweigh the pa-

tient’s interest in refusing unwanted treatment. That im-

plication was made explicit when the Court said, “We

do not think that a State is required to remain neutral

in the face of an informed and voluntary decision by a

physically able adult to starve to death.” /d.

Even if it is assumed that a competent person has

a constitutionally protected liberty interest in refusing

life-sustaining treatment, that interest has its origins in

the law of battery and the doctrine of informed consent

(see Cruzan, 497 U.S. at 269-77) which both define

its nature and limit its scope. The interest restricts “gov-

ernmental power to mandate medical treatment or bar its

rejection,” Casey, 505 U.S. at 857, but does not confer

a right to insist upon a particular form of treatment, much

less one that will cause, and is intended to cause, the

person’s death. See United States v. Rutherford, 442 U.S.

544 (1979) (FDA had authority to proscribe laetrile,

even for terminally ill cancer patients). It is the source

and the nature of the interest that determine its ultimate

reach. Whether the constitutionally protected interest in

refusing unwanted medical treatment extends to life-

sustaining treatment, a question this Court need not an-

swer here, that interest clearly has reached its furthest

limit when all treatment—life-sustaining or otherwise—

has been withheld or withdrawn.

Beyond their multiple errors in analysis, however, the

decisions in both Compassion in Dying and Quill are, in

principle, illimitable. If the right to refuse unwanted

medical treatment is the doctrinal source of a right to

assistance in committing suicide, it is apparent that the

latter right cannot be confined to mentally competent,

terminally ill patients, as the Ninth Circuit admitted. See

79 F.3d at 816, 831-32 & n.120. The lower court deci-

sions, if affirmed, would plunge the country into a gen-

eration of constitutional conflict over the nature and

extent of the “right,” a conflict which would cause irrep-

arable damage to the Nation, to the American People and

to this Court. Amici ask the Court not to take this

precipitous step.

ARGUMENT

I. THE LIBERTY LANGUAGE OF THE DUE PROC-

ESS CLAUSE OF THE FOURTEENTH AMEND-

MENT PROTECTS ONLY THAT CONDUCT WHICH

IS IMPLICIT IN THE CONCEPT OF ORDERED

LIBERTY AND WHICH, HISTORICALLY AND

TRADITIONALLY, IS CONSIDERED BEYOND

THE POWER OF THE STATE TO PROHIBIT.

The Ninth Circuit held that there is “a constitutionally-

protected liberty interest in determining the time and

manner of one’s own death,” or, “in common parlance,

. . . @ right to die.” Compassion in Dying, 79 F.3d at

793, 799. The court held further that, in the case of

mentally competent, terminally ill patients who wish to

end their lives by taking a fatal dose of drugs, this liberty

interest outweighs the State’s “legitimate and counter-

vailing interests, [including] those that relate to the pres-

ervation of human life.” Jd. at 79.,-94. Conceding that

there is no “liberty interest in receiving ‘aid in killing

oneself,” as such, the court couched the issue in wider

terms, whether there is “a right to die,” to determine “the

time and manner of one’s death” or to “hasten[] one’s

death,” because “it is the end and not the means that

defines the liberty interest.” Jd. at 801-02.

The circuit court’s phrasing of the issue disregards this

Court’s admonition that “ ‘[s]ubstantive due process’ analy-

sis must begin with a careful description of the asserted

right, for ‘[t}he doctrine of judicial self-restraint requires

us to exercise the utmost care whenever we are asked to

break new ground in this field.”” Reno v. Flores, 507

U.S. 292, 302 (1993) (quoting Justice Stevens’ opinion

for a unanimous Court in Collins v. City of Harker

Heights, Texas, 503 U.S. 115, 125 (1992)). In Cruzan,

this Court declined to answer the broad question as to

whether there is a “right to die,” focusing instead on the

narrower question of whether “a competent person has a

constitutionally protected liberty interest in refusing un-

wanted medical treatment.” 497 U.S. at 277-78.

Precision in defining the issue is also required here.

The issue is not whether there is “a right to die,” or “a

liberty interest in determining the time and manner of

one’s death” or in “hastening one’s death,” Compassion

in Dying, 79 F.3d at 801-02, but “whether the consti-

tution encompasses a right to commit suicide and, if so,

whether it includes a right to assistance.” People vy.

Kevorkian, 527 N.W.2d 714, 730 n.47 (Mich. 1994)

(rejecting right to suicide), cert. denied sub nom. Kevor-

kian v. Michigan, 115 S.Ct. 1795 (1995), Hobbins vy.

Kelley, 115 S.Ct. 1795 (1995).*

This Court has enunciated various standards for eval-

uating both substantive and procedural due process claims.

Due process protects those rights which are “so rooted in

the traditions and conscience of our people as to be ranked

as fundamental.” Snyder v. Massachusetts, 291 U.S. 97,

i“... the common definition of ‘suicide’ is the intentional killing

of oneself by any means, and the temporal proximity of death is

irrelevant to the threshold inquiry into whether the constitution

encompasses such a right.” Jd. at 725 n.27.

105 (1934). Alternatively, due process secures those

rights which are “implicit in the concept of ordered lib-

erty” such that “neither liberty nor justice would exist if

they were sacrificed.” Palko v. Connecticut, 302 US.

319, 325, 326 (1937). In another frequently cited formu-

lation, Justice Powell described fundamental liberties as

those liberties which are “deeply rooted in this Nation’s

history and tradition.” Moore v. City of East Cleveland,

Ohio, 431 U.S. 494, 503 (1977).

Regardless of the precise wording, each of these tests

requires an examination of our history and traditions to

assess whether the right (or interest) being asserted has

enjoyed legal and societal protection. Compare Roe v.

Wade, 410 U.S. 113, 140-41 (1973) (recognizing right

to abortion where, in the Court’s view, there was no un-

ambiguous tradition of legal and social opposition to

abortion in English and American law), with Bowers v.

Hardwick, 478 U.S. 186, 192-94 & nn. 5-7 (1986) (re-

fusing to recognize fundamental right of adult homosex-

uals to engage in consensual acts of sodomy where both

English and American law clearly prohibited such con-

duct for centuries). The Court’s reliance on _ historical

tradition in Bowers coincided with a less expansive view

of its authority “to discover new fundamental rights im-

bedded in the Due Process Clause.” 478 U.S. at 194.

As this Brief demonstrates, there has never been a

period in English or American history when suicide (or

suicide assistance) was regarded as a “fundamental right,”

a “protected liberty interest” or even a socially tolerated

practice. Perhaps anticipating that its historical survey,

79 F.3d at 806-10, would fail to convince this Court that

a right to (or an interest in) suicide (or suicide assist-

ance) can be derived from our history and traditions, the

Ninth Circuit, citing Planned Parenthood v. Casey, con-

cluded that these factors are no longer controlling or even

persuasive in evaluating substantive due process claims.

79 F.3d at 804-06. But that conclusion is unwarranted.

First, in reaffirming Roe, the Court in Casey stressed

the importance of the rule of stare decisis and the integ-

rity of the Supreme Court as an institution in the consti-

tutional order. 505 U.S. at 845-46, 854-69. Neither con-

sideration lends any support to the establishment of a

heretofore unrecognized constitutional right. Moreover,

in reaffirming Roe, the Court sought to end the “national

controversy” over whether abortion should remain a pro-

tected right, id. at 867, not to begin an entirely new debate

on the nature and extent of a previously unheard of right.*

Second, in Casey, the Court referred to abortion as “a

unique act,” and said that “the liberty of the woman is at

stake in a sense unique to the human condition and so

unique to the law.” 505 U.S. at 852. If abortion is a

“unique act” and “so unique to the law,” then Casey

cannot be cited in support of a liberty interest in com-

mitting suicide, which has no affinity with this Court's

decisions “afford[ing] constitutional protection to _per-

sonal decisions relating to marriage, procreation, contra-

ception, family relationships, child rearing and education,”

id. at 851, which are “deeply rooted in this Nation’s

history and tradition.” Moore, 431 U.S. at 503.

Third, in Casey, the Court stated that “the essential

holding of Roe forbids a State from interfering with a

woman’s choice to undergo an abortion procedure if con-

tinuing her pregnancy would constitute a threat to her

health.” 505 U.S. at 880. But protection of that core

interest differs radically from an asserted interest in self-

destruction where not health, but death, is the desideratum.

Fourth, in Roe, the Court was able to recognize a right

to abortion only after holding that the unborn child is

not a person within the meaning of the Fourteenth

Amendment. 410 U.S. at 156-59. Nothing in Roe, how-

2 The Court’s reluctance to state in Casey whether Roe had been

correctly decided as an original matter, 505 U.S. at 869, 871,

severely limits the usefulness of looking to either Roe or Casey as

an unexplored source of unenumerated rights.

ever, Or in any other decision of this Court remotely

Suggests that a seriously ill patient, regardless of condi-

tion and prognosis, is not a constitutional “person” whose

life the State has the right to protect. See Cruzan, 497

U.S. at 282 n.10 (recognizing State's interest).

Finally, an examination of Casey's analysis of how

substantive due process claims are to be reviewed re-

veals that history and tradition remain critical. “[A ]dju-

dication of substantive due process claims may call upon

the Court in interpreting the Constitution to exercise that

same capacity which by tradition courts always have ex-

ercised: reasoned judgment.” 505 U.S. at 849. But

exercise of that judgment does not allow the Justices “to

invalidate state policy choices with which [they] dis-

agree.” /d. The Court's reliance in Casey on Justice Har-

lan’s dissent in Poe v. Ullman, 367 U.S. 497, 542 (1961)

(Harlan, J., dissenting from dismissal on jurisdictional

grounds), Casey 505 U.S. at 849-50, makes it clear that

in evaluating original claims of constitutional right, re-

course to our history and traditions is still necessary.

Thus, this Court must decide whether “the asserted right

to commit suicide arises from a rational evolution of tradi-

tion, or whether recognition of such a right would be a

radical departure from historical precepts.” People y.

Kevorkian, 527 N.W.2d at 730.

Il. THE COMMON LAW OF ENGLAND, AS RECEIVED

BY THE AMERICAN COLONIES, PROHIBITED

SUICIDE AND ATTEMPTED SUICIDE.

An understanding of the development of the common

law crime of suicide in England is critical to any analysis

of the status of suicide in American colonial law. More

* Much of what follows in this and the following argument draws

upon the research set forth in Thomas J. Marzen, Mary K. O'Dowd.

Daniel Crone and Thomas J. Balch, Suicide: A Constitutional

Right?, 24 Duquesne L. Rev. 1 (1986) (hereinafter, Marzen).

Although the Ninth Circuit repeatedly cited the Marzen article in

its historical survey (79 F.3d at 807-10 & nn. 23-24, 27, 33-37, 39-40,

than 700 years ago, the thirtenth-century commentator

Bracton wrote, “Just as a man may commit felony by

slaying another so he may do so by slaying himself, the

felony is said to be done to himself [felo de se}.” 2 H.

de Bracton (c. 1250), ON THE Laws AND CusToMs oF

ENGLAND (S. Thorne trans. 1968) 423 (BRacTon). If

the suicide was committed to avoid punishment for a

crime he had committed, all of his property—real and

personal—was forfeited to the King. /d. at 366, 423-24.

But if “a man slays himself in weariness of life or because

he is unwilling to endure further bodily pain . . . he may

have a successor, but his movable goods are confiscated.

He does not lose his inheritance, only his movable goods.”

Id. at 424. His heirs could inherit his real property (be-

cause he had not committed suicide to avoid punishment

for committing a crime) but his personal property was

confiscated by the Crown. “The principle that suicide of

a sane person, for whatever reason, was a punishable

felony was thus introduced into English common law.”

Marzen, 24 Duquesne L. Rev. at 59. But no penalty

applied to the suicide of one who was not sane. “[A]

madman bereft of reason[,]” “the deranged, the delirious

and the mentally retarded” or “one labouring under a

high fever” do not commit felony de se “nor do such

persons forfeit their inheritance or their chattels. since

they are without sense and reason and can no more

commit an injuria or a felony than a brute animal.”

BRACTON at 424.

Bracton’s contemporaries agreed that suicide was a

crime at common law. The commentator known as Brit-

42-44), it misstated many of its findings and ignored its conclusion

that “the weight of authority in the United States, from colonial

days through at least the 1970’s[,] has demonstrated that the pre-

dominant attitude of society and the law has been one of opposition

to suicide,” Marzen, 24 DUQUESNE L. REV. at 100. See Compassion

in Dying, 85 F.3d 1440, 1445 & n.14 (9th Cir. 1996) (O’Scannlain.

J., dissenting from order rejecting request for rehearing en banc

by the full court).

ton wrote that “where a man is a felon of himself, his

chattels shall be adjudged ours [the King’s], as the chattels

of a felon, but his inheritance shall descend entire to his

heirs.” I Britton, Bk. I, ch. VIII (F. Nicols trans. 1865)

(reprinted 1983 W.W. Gaunt) 39. Fleta, writing near

the end of the thirteenth century, provided a fuller treat-

ment of the subject:

Just as a man may commit felony in slaying an-

other, so he may in slaying himself; for if one who

has lately slain a man or has committed some like

act whence felonies arise, conscious of his crime and

in fear of judgement, slay himself in any fashion, his

goods accrue to the Crown nor may he have any

other heir than the lord of the fee. But should

anyone slay himself in weariness of life or because

he is unable to support some bodily pain, he shall

have his son for his heir, but his movable goods

will be confiscate. Those, too, who cast themselves

down from a height or drown themselves likewise

have heirs, provided they have committed no felony.

Similarly, madmen and those who are frenzied, child-

ish, deranged or are suffering from high fever, al-

though they kill themselves, do not commit felony or

forfeit their inheritance or chattels, because they lack

sense and reason. Their wives, moreover, should

receive their dowers.

Fleta (c. 1290), Bk. I, ch. XXXIV, “Of Suicides,” Pub-

lications of the Selden Society, Vol. 72, p. 89 (1955).

In 1628, Sir Edward Coke published his classic IN-

STITUTES. In his THIRD INSTITUTE, Coke classified sui-

cide as a form of murder. “Felo de se is a man or woman,

which being compos mentis, of sound memory, and of

the age of discretion, killeth himself, which being lawfully

found by the oath of twelve men, all the goods and chat-

tels of the party so offending are forfeited” E. Coke,

THIRD INSTSTUTE OF THE LAWS OF ENGLAND 54 (1644

ed.). Like his predecessors, Coke noted an exception for

persons who had killed themselves while insane. “If a

man lose his memory by the rage of sickness or infirmity,

7s?

or otherwise, and kill himself while he is not compos

mentis, he is not felo de se: for as he cannot commit

murder upon another, so in that case he cannot commit

murder upon himself.” /d. According to Coke, a felo

de se forfeited only his goods and chattels /d. at 55.

In 1716, the first edition of William Hawkins’ A TREa-

TISE OF THE PLEAS OF THE CROWN was published. Noting

that “our Laws have always had .. . an Abhorrence of

this Crime,” Hawkins’ analysis of “Homicide against a

Man’s own Life” largely followed Coke. Wm. Hawkins,

1 A TREATISE OF THE PLEAS OF THE CROWN (1716)

67-68. Hawkins rejected the prevailing “Notion” that

anyone who kills himself must be mentally incompetent,

id. at 67, and condemned the killing of another person

with his consent or at his request, as well as suicide pacts.

Id. at 68.

In 1736, Sir Matthew Hale’s work, HISTORY OF THE

PLEAS OF THE CROWN, was published. Like Hawkins,

Hale reflected Coke’s views on the criminality of suicide at

common law. M. Hale, 1 HistoRY OF THE PLEAS OF THE

Crown, Ch. XXXI, “Concerning homicide and first of

self-killing or felo de se,” (1736) at 411-12. In accord

with the earlier commentators, Hale stated, “If he lose his

memory by sickness, infirmity, or accident, and kills him-

self he is not felo de se, neither can he be said to commit

murder upon himself or any other.” /d. at 412. But Hale

doubted whether every suicide could be treated as an

insane act. /d.

In 1803, Sir Edward East published his PLEAS oF THE

Crown. East described anyone “who wilfully . . . causes

his own death” as a “felo de se.” E. East, 1 PLEAS OF THE

Crown (1803), ch. V, § 5, at 219 (1972 reprint). Call-

ing suicide “an heinous offence,” East said that “he who

voluntarily kills himself is with respect to the public as

criminal as one who kills another. It is equally an of-

fence against the fundamental law of society, which is

protection.” /d.

Sir William Blackstone summarized the law of felo

de se in his classic eighteenth century commentaries.

Characterizing suicide as “[sJelf-murder,” Blackstone reit-

erated the common law’s condemnation of suicide as

“among the highest crimes, making it a peculiar species of

felony, a felony committed on one’s self.” 4 Blackstone,

COMMENTARIES ON THE LAWS OF ENGLAND 189 (1769).

Like Hawkins and Hale, Blackstone criticized the tend-

ency of coroner’s juries to find “that the very act of

suicide is an evidence of insanity; as if every man who

acts contrary to reason, had no reason at all: for the

same argument would prove every other criminal non

compos, as well as the self-murderer.” Jd. Blackstone

noted that the punishment for suicide at common law

was forfeiture of all of the suicide’s personal property

and ignominious burial in the public way. Id. at 190.

These punishments were threatened in the hope that a

potential suicide’s “care for either his own reputation, or

the welfare of his family, would be some motive to re-

strain him from so desperate and wicked an act.” I/d.

Nevertheless, Blackstone recommended that the severity

of the law be tempered by the power of the sovereign “to

execute mercy in judgment.” /d.

The condemnation of suicide at common law was not

limited to the commentators; it was also expressed by the

courts. In a case decided more than 400 years ago, an

English court described the “quality .* the offence” com-

mitted by the suicide as “a degree of murder.” Hales v.

Petit, 1 Plowd, 253, 261, 75 Eng. Rep. 387, 399-400

(Queen’s Bench 1561-1562). English courts treated both

assisted suicide and suicide pacts as forms of homicide.*

4 See Vauz's Case, 4 Co. Rep. 44a, 76 Eng. Rep. 992 (1591);

Rez v. Dyson, Russ. & Ry. 523, 168 Eng. Rep. 930 (1823) ; Regina

v. Alison, 8 Car. & P. 418, 173 Eng. Rep. 557 (1838); Regina v.

Jessop, 16 Cox Cr. Cas. 204 (1887); Regina v. Stormonth, 61 J.P.

729 (1897); Rex v. Abbott, 67 J.P. 151 (1903). See also Regina

v. Gaylor, 1 Dears. & B. 288, 169 Eng. Rep. 1011 (1857).

And at common law, attempted suicide was a misde-

meanor, punishable by fine and imprisonment.’

The sparse records available indicate that this was also

the law in colonial America. At least nine of the original

thirteen colonies prohibited, and in some cases punished

suicide and attempted suicide,’ though the common law

5 See Regina v. Moore, 3 Car. & K. 319, 175 Eng. Rep. 571 (1852) ;

Regina v. Doody, 6 Cox. Crim. Cas. 463 (1854) ; me v. oo

9 Cox Crim. Cas. 247, 169 Eng. Rep. 1387 (1862); Rex v. Mann,

2 K.B. 107, 88 L.J.K.B. 648 (1914). In its survey of English law,

the Ninth Circuit minimized the clear condemnation of suicide (by

the mentally competent) enunciated by Bracton and Coke, 79 F.3d

at 808-09, relegated Blackstone to an obscure footnote, id. at 809

n.38, ignored the other great commentators who unequivocaliy con-

demned suicide as criminal and overlooked at least a dozen English

cases expressing the law’s (and society’s) disapproval of suicide.

Although, in the case of completed suicides, juries may have been

reluctant to return a verdict that would result in a property forfei-

ture that would punish only innocent survivors, the guilty verdicts

returned against persons who attempted suicide, assisted suicide or

survived suicide pacts strongly suggest that English juries expe-

rienced no comparable difficulty in applying the law where no for-

feiture was at stake.

* Connecticut: 2 Z. Swift, A System or LAWS OF THE STATE OF

CONNECTICUT 304 (n.p. 1796) (reprinted 1972) (noting early in-

stances of ignominious burials) ; Booth, Woodruff, Mather, Baldwin

& Turrill, Preface to CoNN. GEN. STAT. at vi (1875) (noting

State’s adoptien of common law of England).

Georgia: Life Ass'n of America v. Waller, 57 Ga. 533, 536

(1876) (suicide “a species of crime or wickedness—something

wrong; a kind of self-murder” at common law).

Maryland: Pope v. State, 396 A.2d 1054, 1072-74 (Md. 1978)

( adoption of common law) ; Note, Criminal Liability of Participants

in Suicide: State v. Williams, 5 Mp. L. REV. 324, 325-26 (1941)

(reporting unappealed trial court decision treating suicide as a

common law crime).

Massachusetts: THE GENERAL LAWS AND LIBERTIES OF MASSA-

CHUSETTS COLONY (1672), reprinted in THE COLONIAL LAWS OF

MASSACHUSETTS 137 (W. Whitmore ed. 1887) (statute mandating

ignominious burial for suicide).

North Carolina: State v. Willis, 121 S.E.2d 854 (N.C. 1961)

(suicide a criminal act at common law, attempted suicide punishable

penalties generally were abolished after the Revolution.’

The penalties were abolished, not because society no

longer regarded suicide as a wrong (much less as a right),

but because of an awareness that punishment could not

reach the suicide and a moral sense that it was unfair to

punish the suicide’s innocent survivors. See Cruzan, 497

U.S. at 294 (Scalia, J., concurring).

as a misdemeanor). See also N.C. Laws, ch. XXXI, § VI (1715),

reprinted in 1 THE First LAWS OF THE STATE OF NORTH CAROLINA

18 (John D. Cushing ed. 1984) (adopting common law).

Pennsylvania: Connecticut Mut. Life Ins. Co. v. Groom, 86 Pa.

92, 97 (1878) (describing suicide as “the crime of self-murder’”) ;

Commonwealth v. Wright, 11 Pa. D. 144 (Ct. Quarter Sess., Phil.

County 1902) (criticizing practice of indicting persons “for the

common law offence of attempting to commit suicide”) ; Elwood v.

New England Mut. Life Ins. Co., 158 A. 257, 259 (Pa. 1931)

(classifying attempted suicide as “a crime infamous at common

law,” and a successful suicide as “a species of felony’’).

Rhode Island: THE EARLIEST ACTS AND LAWS OF THE COLONY

OF RHODE ISLAND AND PROVIDENCE PLANTATIONS, 1647-1719, at 19,

59 (John D. Cushing ed. 1977) (adopting common law punishments

for suicide).

South Carolina: §.C. Acts, No. 253, § VI (Apr. 9, 1706), re-

printed in 1 THE EARLIEST PRINTED LAWS OF SOUTH CAROLINA,

1692-1734, at 192 (John D. Cushing ed. 1978), (recognizing crimi-

nality of suicide at common law).

Virginia: A. Scott, CRIMINAL LAW IN COLONIAL VIRGINIA 108

n.198, 198-99 nn.15-16 (1980) (noting instances of ignominious

burial and forfeiture of property).

7 See, e.g., DEL. CONST. art. 1, § 15 (1792); Mp. Const., Declara-

tion of Rights § 24 (1776); N.H. Const. pt. 2, art. 89 (adopted

1789) ; N.J. Const. of 1776, art. 17; N.C. Laws, ch. XXXI (17%7),

reprinted in 2 THE FIRST LAWS OF THE STATE OF NORTH CAROLINA

626 (John D. Cushing ed. 1984) ; an Act to reform the pemal Laws,

§53 (1798), reprinted in 2 THe First LAws oF THE STATE OF

RHODE ISLAND 604 (John D. Cushing ed. 1983); Act of Mar. 14,

1848 (Criminal Code), tit. II, ch. XI, §§ 23, 25, 1947-48 Va. Laws

124. Contrary to the understanding of the Ninth Cireuit, 79 F.3d

at 809, the abolition of common law penalties did not mean that

suicide had been decriminalized. See Potts v. Barrett Div., Allied

Chem. & Dye Corp., 188 A.2d 574, 580 (NJ. Super. 1958); State

v. Willis, 121 S.E.2d 854 (N.C. 1961) , Wackwitz v. Roy, 418 S.E.2d

861, 864 (Va. 1992).

Ill. ALTHOUGH THE PENALTIES FOR SUICIDE AND

ATTEMPTED SUICIDE ULTIMATELY FELL INTO

DISFAVOR IN AMERICAN LAW, THE STATES

HAVE RETAINED A STRONG AND COMPELLING

INTEREST IN THE PRESERVATION OF HUMAN

LIFE AND IN THE PREVENTION OF SUICIDE.

The common law penalties for suicide were aban-

doned after the Revolutionary War, and attempted

suicide was seldom prohibited* and more rarely pun-

ised.” Nevertheless, suicide was regarded as “malum in

se” and was often referred to as a “crime,” a “wrongful

* At one time or another, eight States prohibited attempted

suicide: Minnesota: MINN. PENAL Cope, §§ 143, 147 (1885), codi-

fied as MINN. GEN. STAT. §§ 6428, 6432 (1894), recodified as MINN.

Rev. Laws, § 4870, repealed by an Act of Apr. 20, 1911, ch. 293,

§ 1, 1911 Minn. Laws 409, 409; Nevada: Crimes & Punishments

Act of 1911, § 115, codified as Nev. Rev. Laws § 6380 (1912),

repealed by an Act of Mar. 25, 1913, ch. 238, § 1, 1918 Nev. Star.

362, 362; Act of Mar. 4, 1957, ch. 35, § 1, 1956-57 Nev. Srar. 59,

59-60, repealed by an Act of Mar. 31, 1961, ch. 256, § 1, 1961 Nev.

Stat. 416, 416; New Jersey: Act of May 9, 1957, ch. 34, §1, 1

N.J. Laws 63, 67 (1957), codified as N.J. Rev. Stat. § 2A:170-25.6

(Supp. 1967), repealed by an Act of Act of Feb. 16, 1972, ch. 450,

§ 3, 1971 N.J. Laws 19384; New York: Act of July 26, 1881, ch. 676,

§§ 174, 178, 1881 N.Y. Laws (Vol. 3 Penal Code) at 42-43, repealed

by an Act of May 5, 1919, ch. 414, § 1, 1919 N.Y. Laws 1193, 1198;

North Dakota: G. Hand, Rev. Copes oF THE TERRITORY oF DAKOTA,

PENAL Cope §§ 230, 236 (1877), repealed by an Act of Mar. 4, 1967,

ch. 108, § 1, 1967 N.D. Sess. Laws 215, 300; Oklahoma: Okla. Terr.

Stat. 2076 (1890), repealed by an Act of Jan. 30, 1976, ch. 6, § 2,

1976 Okla. Sess. Laws 7; South Dakota: G. Hand, Rev. Copes or

THE TERRITORY OF DAKOTA, PENAL Cope §§ 230, 236 (1877), recodi-

fied as S.D. Cong, § 13.1908 (1939), repealed by an Act of Feb. 17,

1968, ch. 31, § 1, § 13.1901, 1968 S.D. Sess. Laws 47, 47; Washing-

ton: CRIM. Cope, ch. 249, § 134, 1909 Wash. Laws 11th Sess. 890,

929, codified at Rem. & BAL. Cope § 2386 (1910), repealed by WASH.

Crim. Cope, 1975, ch. 260, § 9A.92.010(213)-(217) Wash. Laws 817,

866, codified as Rev. WASH. Cope § 9A.92.010(213)-(217) (1977).

* Three courts held that attempted suicide could be charged as

a common law crime. See State v. Carney, 55 A. 44 (NJ. 1908);

State v. Lafayette, 188 A. 918 (N.J. Common Pleas 1937) ; State v.

Willie, 121 S.E.2d 854 (N.C. 1961).

act,” a “grave public wrong,” or an act of “moral turpi-

tude,” even though it was no longer punishable.” Indeed,

in a case decided 120 years ago, this Court characterized

suicide as “self-murder,” and referred to the suicide of a

sane person as “an act of criminal self-destruction.” Bige-

low v. Berkshire Life Ins. Co., 93 U.S. 284, 286 (1876).

1 See, e.g.. McMahan v. State, 53 So. 89, 90-91 (Ala. 1910);

Pennsylvania Mut. Life Ins. Co. v. Cobbs, 123 So. 94, 97 (Ala. App.

1929); Life Ass'n of America v. Waller, 57 Ga. 533, 536 (1876);

Grand Lodge of Illinois, Indep. Order of Mut. Aid v. Wieting, 48

N.E. 59, 61-62 (Ill. 1897); Dickerson v. Northwestern Mut. Life

Ins. Co., 65 N.E. 694, 696 (Ill. 1902) ; Wallace v. State, 116 N.E.2d

100, 101 (Ind. 1953); Brown v. Metropolitan Life Ins. Co., 7

N.W.2d 21, 24 (lowa 1943) ; Manhattan Life. Ins. Co. v. Beard, 66

S.W. 35, 37 (Ky. 1902); Dugan v. Commonwealth, 333 S.W.2d 755,

756 (Ky. 1960) ; Commonwealth v. Mink, 123 Mass. 422, 426, 428-29

(1877) ; Bohaker v. Travelers Ins. Co., 102 N.W. 342, 344 (Mass.

1913) ; Hale v. Life Indem. & Inv. Co., 638 N.W. 1108, 1108 (Minn.

1895) ; Shipman v. Protected Home Circle, 67 N.E. 83, 85 (N.Y.

1908) ; Benard v. Protected Home Circle, 146 N.Y.S. 232, 235 (App.

Div. 1914); State v. Willis, 121 S.E.2d 854, 855-57 (N.C. 1961);

Wyckoff v. Mut. Life Ins. Co. of N.Y., 147 P.2d 227, 229 (Or. 1944) ;

Elwood v. New England Mut. Life Ins. Co., 158 A. 257, 258-59

(Pa. 1981) ; State v. Levelle, 13 S.E. 319, 321 (S.C. 1891), overruled

on other grounds, State v. Torrence, 406 S.E.2d 315 (S.C. 1991) ;

Phadenhauer v. Germania Life Ins. Co., 54 Tenn. (7 Heisk.) 567,

576 (1872) ; State ex rei. Swann v. Pack, 527 S.W.2d 99, 113 (Tenn.

1975), cert. denied, 424 U.S. 954 (1975) ; Plunkett v. Supreme Con-

clave, Improved Order of Heptasophs, 55 S.E. 9, 10-11 (Va. 1906) ;

Patterson v. Natural Premium Mut. Life Ins. Co., 76 N.W. 980, 983

(Wis. 1898).

In its highly selective use of historical materials, the Ninth Cir-

cuit ignored twenty-two decisions from sixteen American jurisdic-

tions (most of which were cited in Marzen) condemning suicide

and, instead, focused on one, isolated New Jersey Supreme Court

decision from 1901 which, in dicta, appeared to excuse suicide, at

least in some instances. See Compassion in Dying, 79 F.3d at 809-

10 (quoting Campbell v. Supreme Conclave Improved Order

Heptasophs, 49 A. 550, 553 (N.J.L. 1901)). The court failed to

note that later New Jersey opinions expressly rejected Campbell's

approbation of suicide. See State v. Carney, 55 A. 44 (N.J. 1903) ;

Potts v. Barrett Div., Allied Chem. & Dye Corp., 138 A.2d 574, 580

(NJ. Super. 1958).

a dt ot ee 2 ee ee

fense.* Whatever may have been the common law ra-

" Arkansas: Act of Feb. 16, 1838, printed as Ark. Rev. STAT.

ch. XLIV, div. III, art. II, § 4, at 240 (1838); Florida: Act of

Aug. 6, 1868, ch. 1637 (No. 13), subchap. 3, § 9, 1868 Fla. Laws 61,

64; Kansas: KAN. TERR. STaT. ch. 48, §8 (1855): Minnesota:

MINN. TeRR. Rev. Stat. ch. 100, § 9, at 493 (1851); Mississippi :

Act of Feb. 15, 1839, ch. 66, tit. 3, § 7, 1889 Miss. Laws 102, 112,

codified as Miss. Cope ch. 64, art. 12, tit. 3, § 7, at 958 (Hutchinson

1849) ; Missouri: Act of Mar. 20, 1835, art. II, codified as Mo. REv.

Stat. Crimes & PUNISHMENTS, art. II, §8, at 168 (1835); New

York: 2 N.Y. Rev. Star. pt. IV, ch. I, tit. I, art. 1, §7 at 661

(1829); Oregon: Or. Gen. Laws 1845-1864 (Deady 1866), Cope

or Crim. Proc. § 508 at 528; South Carolina: 1 Tue EARLIEST

PRINTED LAWS OF SOUTH CAROLINA 1692-1734, at 190 (John D.

Cushing ed. 1978) (statute condemning suicide as a felony and,

by implication, assisted suicide); Wisconsin: REVISED STAT. oF

THE STATE or Wis. ch. 133, §9 (Albany, N.Y. 1849), codified as

Rev. STAT. or Wis. ch. 164, §9 (1858).

12 Alabama: Alabama adopted the common law of crimes, includ-

ing the law of homicide. ALA. Dicest, tit. 17, ch. 1, § 45, at 214

(H. Toulmin ed. 1823); PENAL Cope, No. 138, ch. 3, § 2, 1840-41

ALA. ACTs 122 (codified as Supplement to AIKEN’s DIGEST PENAL

Cope, ch. 3, § 2, at 210 (A. Meek ed. 1836-41)). For the modern

statutory codification of common law crimes, see ALA. Cope § 13A-

6-3 (1994) and Commentary. Since “[e]very murder at common

law is murder under our statutes,” McMahan v. State, 53 So. 89,

90 (Ala. 1910), suicide was a felony even though no punishment

could be attached. Jd. at 90-91 (“intentional self-destruction” is

“felo de se”). Accordingly, assisted suicide would have been crimi-

nal, also. See also Crook v. State, 160 So.2d 884, 893 (Ala. 1963) :

“Suicide is murder at Common Law. ... An agreement compassing

it is a criminal conspiracy. If one of the conspirators dies . . . the

survivor—if he contributed to the suicide whether present or not—

can legitimately be tried for murder.”

Connecticut: Connecticut also adopted the common law of crimes.

See Booth, Woodruff, Mather, Baldwin & Turrill, Preface to Conn.

GEN. Stat. at vi (1875). Persuading, provoking or counseling

tionale for prohibiting suicide, the States have retained a

strong interest in protecting the lives of their citizens. That

interest is currently manifested in several ways.

another to commit suicide was treated as murder. 2 Z. Swift, A

DIGEST OF THE LAWS OF THE STATE OF CONNECTICUT 270 (New

Haven 1823).

Georgia: A post-Reconstruction case referred to suicide as “some-

thing more than self-sought and self-inflicted death. It is a species

of crime or wickedness—something wrong; a kind of self-murder.”

Life Ass’n of America v. Waller, 57 Ga. 533, 536 (1876). This

language suggests that assisted suicide would have been criminal,

too.

Kentucky: In 1904, the Kentucky Court of Appeals held that

suicide was a common law felony and that one could be charged

and convicted for advising or assisting in the commission of a

suicide. Commonwealth v. Hicks, 82 S.W. 265 (Ky. 1904).

Maryland: From its earliest days, Maryland adopted the common

law of crimes. See Pope v. State, 396 A.2d 1054, 1072-74 (Md.

1978) (recognizing common law crime of misprision of felony) ;

Gladden v. State, 330 A.2d 176 (Md. 1974) (adopting common law

“transferred intent” rule) ; State v. Buchanan, 5 H. & J. 317 (1821)

(adopting common law crime of conspiracy). Both suicide and as-

sisted suicide were crimes at common law. An unappealed trial

court decision in 1940 upheld the conviction of the survivor of a

suicide pact for second-degree murder, essentially holding that

active assistance in committing suicide is a form of homicide. See

Note, Criminal Liability of Participants in Suicide: State v. Wil-

liams, 5 Mp. L. Rev. 324 (1941).

Massachusetts: Commonwealth v. Bowen, 13 Mass. 356 (1816)

(holding that one prisoner who assisted another prisoner in hang-

ing himself in jail could be charged with murder) ; Commonwealth

v. Mink, 123 Mass. 422, 429 (1877) (reviewing cases on suicide and

attempted suicide and concluding that while not “technically a

felony in this Commonwealth,” suicide was nevertheless “unlawful

and criminal as malum in se,” and that “any attempt to commit it

is likewise unlawful and criminal”).

Michigan: From its earliest days as a territory, Michigan

adopted the common law of crimes, in addition to particular statu-

tory crimes. See Cass Cope or 1816, Crimes § 58, reprinted in

1 Micu. Terr. Laws 132-33 (1871). For the modern statutory

codification of common law crimes, see Micn. Comp. Laws ANN.

§ 750.505 (West 1991). In an 1876 decision, the Michigan Supreme

Court recognized that the suicide of sane person was a crime at

common law. See John Hancock Mut. Life Ins. Co. v. Moore, 34

First, almost all of the States (forty-six States) forbid

assisted suicide, either by an express statute” or by ap-

1961). The court expressly held that one who “aids and abets

another in . . . self-murder is amenable to the law.” Id. at 856-57.

After independence, North Carolina readopted the common law.

See N.C. Laws, ch. V, § II (1778), reprinted in 1 Tue First Laws

OF THE STATE OF NORTH CAROLINA 351 (John D. Cushing ed. 1984).

Pennsylvania: In 1878, the Pennsylvania Supreme Court defined

popular use.” Connecticut Mut. Life Ins. Co. v. Groom, 86 Pa. 92,

97 (1878). As a State that adopted common law crimes, assisting

suicide would have been a criminal offense.

Tennessee: Tennessee adopted the common law. See State v.

Alley, 594 3.W.2d 381, 382 (Tenn. 1980). In 1872, the Tennessee

Supreme Court referred to suicide “a crime of the highest grade.”

Phadenhauer v. Germania Life Ins. Co., 54 Tenn. (7 Heisk.) 567,

576 (1872). Thus, assisted suicide also would have been unlawful.

Virginia: Virginia adopted the common law of crimes. See A.

Seott, CRIMINAL LAW IN COLONIAL VircINIA 27 ( 1930); Va. Cope

ANN. § 18.2-16 (1996); Plunkett v. Supreme Conclave, Improved

Order of Heptasophs, 55 S.E. 9, 11 (Va. 1906) (referring to suicide

as a “crime”). See also Wackwitz v. Roy, 418 S.E.2d 861, 864 (Va.

1992) (“[s)wicide... remains a common law crime in Virginia as

it does in a number of other common-law states”).

Thirty-five States have enacted statutes banning assisted sui-

cide. ALASKA STAT. §11.41.120(a)(2) (Michie 1989): Ariz. REV.

STaT. AWW. § 13-1103(A) (3) (West Supp. 1995): ARK. Cope ANN.

§ 5-10-104(a)(2) (Michie 1998); CaL. PENAL Cope $401 (West

1988); Coto. Rev. Stat. § 18-3-104(1) (b) (Supp. 1995); Conn.

GEN. STAT. ANN. § 53a-56(a) (2) (West 1994); Den. Cope ANN. tit.

11, §645 (1995); FLA. STAT. ANN. § 782.08 (West 1992); Ga.

Cope ANN. § 16-5-5(b) (1996); Itt. Comp. STAY. ANN. CH. 720,

plication of general homicide or common law principles.’*

Although suicide assistance is not as common as suicide

§6/12-81(a)(2) (Smith-Hurd Supp. 1996) ; InD. Cope ANN.

§ 35-42-1-2.5(b) (Michie Supp. 1996); lowa S.F. 2066, to be codi-

fied as lowa Cope §707A.2 (Supp. 1996); KAN. STAT. ANN.

§ 21-8406 (1995); Ky. Rev. STaT. ANN. § 216.302 (Michie 1995) ;

LA. Rev. STAT. ANN. §14:32.12 (West Supp. 1996); ME. REV.

STAT. ANN. tit. 17-A, §204 (West 1983); MINN. STAT. ANN.

§ 609.215 (West 1987 and Supp. 1996) ; Miss. Cope ANN. § 97-3-49

(1994) ; Mo. ANN. STAT. § 565.023.1(2) (West Supp. 1996) ; MONT.

Cope ANN. § 45-5-105 (1995); Nes. Rev. Stat. ANN. § 28-307

(Michie 1995); N.H. Rev. STAT. ANN. § 630.4 (1996); NJ. Stat.

ANN. § 2C:11-6 (West 1995); N.M. STaT. ANN. §30-2-4 (Michie

1994); N.Y. Penat Law §§ 120.30, 126.15(3) (McKinney 1987) ;

N.D. Cent. Cope § 12.1-16-04 (Supp. 1995) ; OKLA. Stat. ANN. tit.

21, §§ 813, 814, 815 (West 1983); Or. Rev. Stat. § 168.126(1) (b)

(1993) (although Oregon allows physician-assisted suicide under

certain circumstances, see OR. REV. STAT. § 127.800 et seq. (1996),

assisted suicide remains generally illegal); Pa. Cons. STAT. ANN.

tit. 18, § 2505(b) (West 1983); R.I. Pub, Act 96-138, to be codified

as R11. GEN. STAT. tit. 11, ch. 60; S.D. Copiriep Laws ANN.

§ 22-16-37 (Michie 1988); TENN. CODE ANN. § 39-13-216 (Supp.

1995); Tex. PENAL Cope ANN. § 22.08 (West 1994) ; Wasn. Rev.

Cope ANN. § 9A.36.060 (West 1988); Wis. STaT. ANN. § 940.12

(West 1996).

14 Jdaho: IDAHO Cope § 18-803 (1987) (adopting common law

crimes).

Ohio: Blackburn v. State, 23 Ohio St. 146 (1872) (man con-

victed of murder for preparing poisonous concoction and giving

it to his wife, who drank it intending to kill herself).

South Carolina: State v. Levelle, 13 S.E. 819, 321 (3.6. 189%)

(“suicide is an unlawful act, an act malum in s¢, and is &@ felony”).

Since suicide was a felony, assisted suicide would have been erim-

inal, also. See also State v. Jones, 67 SF. 160. 162, 166 (8.C.

1910). For the modern statutory codification of common law

crimes, see S.C. Cope ANN. § 16-1-110 (Law Co-op. Supp. 1995).

Vermont: VT. STAT. ANN. tit. 2, § 271 (1996) (adopting commen

law). See State v. Stanislaw, 573 A-2e 286, 289 (Vt. 1990) (recog:

nizing common law crimes) .

West Virginia: State v. General Daniel Morgan Post No 548,

107 S.E.2d 353, 357 (W. Va. 1959) (adopting common law crimes |

For Alabama, Maryland, Massachusetts, Michigan. North Carolina

and Virginia, see the authorities cited in n.12, supre.

on the States do enforce their assisted suicide laws.”

oreover, suicide assistance is often prosecuted as a form

of homicide, independent of any assisted suicide statute,

where — person actively assists another in killing

Second, nearly one-half of the States allow both pri-

vate and public actors to use nondeadly force to thwart

suicide attempts.” Third, all States provide for the tem-

See, e.g., Hinson v. State, 709 S.W.2d 106 ;

2 re Joseph G., 667 P.2d 1176 (Cal. 1983) ; gmt Boca a

eddie, 1990 WESTLAW 96595 (Del. Super. 1990) (noting plea of

guilty to promoting a suicide); State v. Bauer, 471 N.W.2d 363

(Minn. App. 1991) ; Commonwealth v. Swartzentruver, 389 A.2d 181

(Pa. Super. 1978); Chanslor v. State, 697 S.W.2d 398 (Tex. Cr

App. 1985) ( noting that defendant could have been charged with

aa suicide in obtaining poison to give to his wife). See also

= —he Journal, May 1, 1996, A18 (reporting man’s plea of

ous - Ai. pted manslaughter for assisting his wife in commit-

* See, ¢.y., People v. Cleawes, 280 Cal. Rptr. 146 (Ct. A

(second degree murder) ; State ». Marti, 290 aeae 570 (ls. pre

(involuntary manslaughter); Persampieri v. Commonwealth. 175

N.E.2d 387 (Mass. 1961) (involuntary manslaughter) ; State v

Bier, 591 P.2d 1115 (Mont. 1979) (negligent homicide) ; State vr.

Sexson, 869 P.2d 301 (N.M. 1994) (murder); People v. Duffy, 595

N.E.2d 814 (N.Y. 1992) (manslaughter).

1 See ALA. Cope § 13A-3-24(4) (1904) ; ALASKA Star. § 11.81.4-

30(a)(4) (Michie Supp. 1989); Ariz. Rey. Strat. ANN. § 13-408(4)

(West 1989); ARK. Cope ANN. § 5-2-4405(4) (Michie 1993): Coto

Rev. STAT. § 18-1-703(1) (d) (West 1990); CoNN. GEN. STAT. AWN.

§ 534-1814) (West 1994) ; DeL. Cope ANN. tit. 11, § 467(e@) (1995) ;

Haw Rev. Star. § 703-308(1) (1985); Ky. Rev. Stat. § 602.100

(1) (a) (Michie 1990); Me. Rev. Stat. ANN. tit, 17-A, § 106(6)

(West 1983); MINN. STAT. ANN. § 609.06(8) (West 1987): Mo

ANN. STAT. §5943.061(5) (West 1979); Nesp. Rev. Stat '§ 28-

1412(7) (Michie 1995); N.H. Rev, STAT. § 627:6(VI) (1996) ;

N.J. STA? ANN. §2C:3-7(e) (West 1995); N.Y. Penat, Law

§ 35.10(4) (MeKinney 1987); N.D. Cent. Cope § 12.1-05-05(5)

(1985); ORLA. STAT. ANN. tit. 21, §648(6) (West 1996); Or

ev. Stat. § 161.205(4) (1993); Pa. Cons. STAT. ANW. tit. 18.

§ Sonia) / om) | Paam. Cope ANN. § 39-11-6183 (1991) ; Tex.

° a ‘i ;

S Tasdecby (iba sees ) (West 1994); Wis. Stat. ANN.

‘nvoluntary commitment of individuals who, as a

ag pr p Mowe or illness, may harm themselves."*

Finally, despite occasionai instances of jury nullification

or discretionary decisions not to prosecute, acts of “mercy-

killing” or active voluntary euthanasia always have been

considered as homicide. The law does not accept the con-

sent of the victim as a defense to a charge of homicide,

nor benevolent motive as an excuse.

In light of this overwhelming legislative and judicial

consensus,” which the Ninth Circuit largely ignored, it

18 See, ¢.g., N.Y. MENTAL HYG. LAw, § 9.01 et seq. (McKinney

1996) ; WASH. Rev. Cope ANN. § 71.05.020 et seq. (West 1992).

19 See, e.g., Gospodareck v. Stat, 666 So.2d 835, 842 _—. Cr.

App. 1993); People v. Matlock, 386 P.2d 505 (Cal. 1959); 7 4

Thomas C., 228 Cal. Rptr. 430 (Ct. App. 1986); Ragan v. ope

599 So.2d 276 (Fla. Dist. Ct. 1992); Gentry v. State, 625 a

1268 (Ind. App. 1994) ; State v. Cobb, 625 P.2d 1133, 1135-36 a

1981); State v. Ludwig, 70 Mo. 412, 415 (1879); State v. F 2

278 N.W.2d 756, 761 (Neb. 1979) ; Edinburgh v. State, 896 oo

1176, 1178-80 (Okla. Cr. App. 1995) ; State v. Bouse, 264 P.2d a

812 (Or. 1953), overruled on other grounds, State v. po nag

P.2d 418 (Or. 1962), State v. Brewton, 895 P.2d 874 (Or. 1 ;

Turner v. State, 108 S.W. 1339, 1141 (Tenn. 1907) ; Goodin v. State,

726 S.W.2d 956, 957-58 (Tex. Cr. App. 1987); Martin v. senag

wealth, 37 S.E.2d 43, 47 (Va. 1946). See also State v. Mays, 3

S.E.2d 655 (W. Va. 1983).

20 v. Conley, 411 P.2d 911, 918 (Cal. 1966) (“one who

Pri prea bears no ill will toward his victim and believes

[that] his act is morally justified . . . nonetheless acts with malice

if he is able to comprehend that society prohibits his act a

of his personal belief”) ; Gilbert v. State, 487 So.2d 1185, ~~

Dist. Ct. App. 1986), rev. denied, 494 So.2d 1150 (Fla. ;

Eichner v. Dillon, 426 N.Y.S.2d 517, 533 (App. Div. 1980), A

as modified sub nom. In re Storar, 420 N.E.2d 64 (N.Y. ——

Anecdotal evidence and polling data that some physicians may = a

their patients in killing themselves, Compassion in Dying, od ae

at 811 & nn.54-59, does not reflect societal acceptance of su =

duct, especially where the conduct is difficult to detect and prosecute.

i though

21 The Model Penal Code prohibits assisted suicide, even

the Code does not criminalize either suicide or attempted suicide.

See MopEL PENAL Cope § 210.5(2). In their Comment, the a

said that “the interests in the sanctity of life that are represen

cannot plausibly be argued that a right to commit suicide

(or suicide assistance) under any circumstances is “deeply

rooted in this Nation’s history and traditions,” Moore v.

City of East Cleveland, Ohio, 431 U.S. at 503, or that

it is “implicit in the concept of ordered liberty,” Palko v.

Connecticut, 302 U.S. at 325. It would be “an imper-

missibly radical departure from existing tradition, and

from the principles that underlie that tradition, to declare

that there is such a fundamental right protected by the

Due Process Clause.” Kevorkian, 527 N.W.2d at 733.

IV. BOTH THE SECOND CIRCUIT AND THE

NINTH CIRCUIT ERRED IN EQUATING SUICIDE

WITH THE REFUSAL OF UNWANTED LIFE-

SUSTAINING MEDICAL TREATMENT.

The key error of both the Second Circuit's equal pro-

tection analysis and the Ninth Circuit's due process analy-

sis was to equate suicide, a crime at common law, with

the refusal of unwanted medical care, a right protected by

the common law and the Constitution. See Quill, 80 F.3d

at 725-31; Compassion in Dying, 79 F.3d at 820-24.

They are not equivalent.

{[W]hereas suicide involves an affirmative act to

end a life, the refusal or cessation of life-sustaining

treatment simply permits life to run its course, unen-

cumbered by contrived intervention. Put another

way, suicide frustrates the natural course by intro-

ducing an outside agent to accelerate death, whereas

the refusal or withdrawal of life-sustaining medical

treatment allows nature to proceed, i.e., death occurs

because of the underlying condition.

[Pjersons who opt to discontinue life-sustaining

medical treatment are not, in effect, committing

suicide. There is a difference between choosing a

natural death summoned by an uninvited illness or

by the crimina] homicide laws are threatened by one who expresses

a willingness to participate in taking the life of another, even

though the act may be accomplished with the consent, or at the

request, of the suicide victim.” Jd. at 100.

calamity, and deliberately seeking to terminate one’s

life by resorting to death-inducing measures unrelated

to the natural process of dying.

People v. Kevorkian, 527 N.W.2d at 728-29.

Virtually without exception, state legislators and both

state and federal courts have recognized the distinction

between directly causing death by an affirmative act end-

ing life and allowing death to occur by withholding or

withdrawing life-sustaining medical treatment. Forty-seven

States expressly disapprove of mercy killing, suicide and

assisted suicide in either their natural death acts/living

will statutes, or their durable power of attorney for

22 ALA. Cope § 22-8A-10 (1990); ALASKA STAT. § 18.12.080(f)

(Michie 1994); Ariz. Rev. STaT. ANN. § 36-3210 (West. Supp.

1995); ARK. CopE ANN. § 20-17-210(g) (Michie 1991); CAL.

HEALTH & SAFETY Cope § 7191.5(g) (West Supp. 1996); CoLo.

Rev. STAT. § 15-18-112(1) (West 1987) ; FLA. Stat. ANN. § 765.309

(1) (West Supp. 1996); Ga. Cope ANN. § 31-32-11(b) (1996);

Haw. Rev. STAT. § 827D-13 (Supp. 1992); ILL. Comp. STAT. ANN.

ch. 755, § 35/9(f) (Smith-Hurd 1992) ; IND. Cope ANN. § 16-36-4-19

(Michie 1998); Iowa Cope ANN. § 144A.11.6 (West 1989); KAN.

Stat. ANN. § 65-28,109 (1992); Ky. Rev. Stat. ANN. § 311.639

(Michie 1995); LA. Rev. STaT. ANN. § 40:1299.58.10(A) (West

1992); Me. Rev. STAT. ANN. tit. 18-A, §5-813(c) (West Supp.

1995); Mp. HEALTH-GEN. Cope ANN. §5-611(c) (1994); MINN.

Strat. ANN. § 145B.14 (West Supp. 1996); Miss. CopE ANN. § 41-

41-117(2) (1998); Mo. ANN. Stat. § 459.055(5) (West 1992) ;

Mont. Cope ANN. § 50-9-205(7) (1995); Nes. Rev. STAT. ANN.

§ 20-412(7) (Michie 1995); Nev. Rev. Stat. ANN. § 449.670(2)

(Michie 1991); N.H. Rev. ANN. §137-H:13 (1996); N.C. GEN.

Stat. § 90-820(b) (1993); N.D. Cent. Cope § 23-06.4-01 (1991) ;

OHIO REV. Cope ANN. § 2133.12(D) (Anderson Supp. 1995) ; OKLA.

STAT. ANN. tit. 63, §3101.12(G) (West Supp. 1996); Pa. Cons.

STAT. ANN. tit. 20, §5402(b) (West Supp. 1996); R.I. Gen. Laws

§ 23.4.11-10(f) (Supp. 1995); S.C. CoDE ANN. § 44-77-139 (Law.

Co-op. Supp. 1996) ; S.D. Coprrrep Law ANN. § 32-12D-20 (Michie

1994) ; Tex. HEALTH & SAFETY CopE ANN. § 672.020 (West 1992) ;

UTAH CopE ANN. § 75-2-1118 (1993); Va. Cope ANN. § 54.1-2990

(Michie 19¢4) ; WAsH. REV. Cope ANN. § 70.122-100 (West Supp.

1996); W. VA. Cope § 16-30-10 (1995); Wis. Stat. ANN. § 154.11

(6) (West 1989); Wyo. Stat. § 35-22-109 (Michie 1994).

health care acts “ or both.

Moreover, the majority’s conclusion in Compassion in

Dying “that there is no constitutionally permissible dis-

tinction between suicide and refusing medical treatment

. . . ignores a long line of judicial decisions that recognize

the distinction.” 85 F.3d at 1444 (O’Scanniain, J., dis-

senting from order rejecting request for rehearing en banc

by the full court). In In re Quinlan, 355 A.2d 647 (N.J.

1976), cert. denied sub nom. Garger v. New Jersey, 429

U.S. 922 (1976), the landmark “right-to-die” case, the

New Jersey Supreme Court, in authorizing the parents of

Karen Ann Quinlan to remove her from a ventilator, was

careful to distinguish withdrawal of life support from

homicide and suicide “We would see a real distinction

between the self-infliction of deadly harm and a self-

determination against artificial life support or radical

surgery, in the fact of irreversible, painful and certain

imminent death.” Jd. at 665. The court noted further that

“there would be no criminal homicide” in removing the

ventilator, explaining that “the ensuing death would not

be homicide but rather expiration from existing natural

causes.” Id. at 669-70. In Superintendent of Belcher-

town State School v. Saikewicz, 370 N.E.2d 417 (Mass.

1977), the Massachusetts Supreme Judicial Court con-

curred:

% Act of July 12, 1982, §3, 63 Del. Laws 821 (1981); IDAHO

Cove § 39-152 (Supp. 1996) (DNR orders) ; ILL. Comp. STAT. ANN.

ch. 755, § 40/650 (Smith-Hurd 1992); IND. Cope ANN. $§ 16-36-1-

12(c), 16-36-1-13 (Michie 1998), see also § 30-5-5-17(b) (Michie

Supp. 1996); Iowa Cope ANN. § 144B.12.2 (West Supp. 1996) ;

Mass. GEN. LAWs ANN. ch. 201D, § 12 (West Supp. 1996): MICH.

Comp. LAws ANN. § 700.496(20) (West 1995); N.Y. Pus. HEALTH

LAW § 2989(3) (McKinney 1998); N.D. CENT. Cope § 23-06.5-01

(1991); R.I. GEN. Laws 23-4.10-9(f) (Supp. 1995); Wyo. STar.

§ 3-5-211 (Michie Supp. 1996).

* See notes 22 and 28, supra. See also CONN. GEN. STAT. ANN.

§ 19a-575 (West Supp. 1996) (form declaration) ; N.J. STAT. ANN.

§ 26:2H-54(d), -(e) (West 1996) (legislative findings); N.M.

STaT. ANN. § 24-7A-13(C) (Michie Supp. 1995).

he case of the competent adult’s refusing medical

tb such an act does not necessarily constitute

suicide since (1) in refusing treatment the patient

may not have the specific intent to die, and (2) even

if he did, to the extent that the cause of death was

from natural causes, the patient did not set the

death producing agent in motion with the intent

of causing his own death.

_ at 426 n.11. See also Thor v. Superior Court, 855

eas 375, 385 (Cal. 1993) (“a necessary distinction

exists between a person suffering from a life-threatening

disease or debilitating injury who rejects medical interven-

tion that only prolongs but never cures the affliction and

an individual who deliberately sets in motion a course of

events aimed at his or her demise and attempts to enlist

the assistance of others); Fosmire v. Nicoleau, 551

N.E.2d 77, 82 (N.Y. 1990) (“merely declining medical

care, even essential treatment, is not considered a suicidal

act”); In re Colyer, 660 P.2d 738, 743 (Wash. 1983)

(“[a] death which occurs after the removal of life sus-

taining systems is from natural causes, neither set in

motion nor intended by the patient”).

Almost every court recognizing a right to refuse med-

ical treatment has expressly distinguished removal of life

support from suicide, and has drawn a clear distinction

between allowing death to occur by passive means (re-

fusing life-sustaining treatment) and causing death by

active means (killing the patient by a direct act that ends

his life). No court, with the exception of those courts

25 See also Rasmussen v. Fleming, 741 P.2d 674, 685 (Ariz. 1987) ;

Pte v. Superior Court, 225 Cal. Rptr. 297, 306 (Ct. App. 1986)

(quadriplegic’s “decision to let nature take its course is not a.

alent to an election to commit suicide with real parties aiding ~~

abetting therein”) ; Bartling v. Superior Court, 209 Cal. a von

225 (Ct. App. 1984): Barber v. Superior Court, 195 Cal. Rptr. -

487 (Ct. App. 1983); McConnell v. Beverly Enterprises, Inc., <~

A.2d 596, 605 (Conn. 1989) ; In re Guardianship of Browning, “

So.2d 4, 14 (Fla. 1990) (“suicide is not an issue when... =

discontinuance of life support ‘in fact will merel > y result _ e

patient’s) death, if at all, from natural causes’”) (citing v.

whose decisions are under review here, has held other-

wise. As these cases demonstrate, suicide cannot be

equated with the refusal of medical treatment. They are

different in two key respects: First, in the case of remov-

ing life-sustaining treatment, there is no intent to end

life, but only the knowledge that death may result. Second,

regardless of whether there is an intent to end life, the

removal of life support is not the actual cause of death:

rather, death results from natural causes (e.g., an under-

lying pathology that renders a patient unable to breathe

or eat without mechanical assistance). These distinctions

fully justify treating assisted suicide differently from the

refusal of unwanted life-sustaining medical treatment. See

FCC v. Beach Communications, Inc.. 508 US. 307,

313-16 (1993). As the New York State Force Report

on Life and the Law noted:

The imposition of life-sustaining medical treatment

against a patient's will requires a direct invasion of

bodily integrity and, in some cases, the use of physi-

cal restraints, both of which are flatly inconsistent

Perlmutter, 8362 So.2d 160, 162 (Fla. Dist. Ct. App. 1978), aff'd,

879 So.2d 359 (Fla. 1980); In re Estate of Longeway, 549 N.E.2d

292, 296 (Ill. 1989); In re Lawrance, 579 N.E.2d 32, 40 n.4 (Ind.

1991); De Grella by and through Parrent v. Elston, 858 S.W.2d

698, 707 (Ky. 1993) (“‘[mJercy killing’ and ‘euthanasia’ or any

other ‘affirmative or deliberate act to end life’ are fundamental

violations of the common law”) (citation omitted); Jn re P.V.W.,

424 So.2d 1015, 1022 (La. 1982) ; In re Gardner, 534 A.2d 947, 955-

56 (Me. 1987) ; Guardianship of Doe, 583 N.E.2d 1263, 1270 (Mass.

1992), cert. denied sub nom. Doe v. Gross, 505 U.S. 950 (1992) ;

Brophy v. New England Sinai Hospital, Inc., 497 N.E.2d 626, 638

(Mass. 1986); In re Rosebush, 491 N.W.2d 633, 636 n.2 (Mich.

App. 1992); McKay v. Bergstedt, 801 P.2d 617, 627 (Nev. 1990)

(“there is a substantial difference between the attitude of a person

desiring non-interference with the natural consequences of his or

her condition and the individual who desires to terminate his or

her life by some deadly means either self-inflicted or through the

agency of another”) ; Jn re Farrell, 529 A.2d 40, 411 (N.J. 1987) ;

Leach v, Akron General Medical Center, 68 Ohio Misc. 1, 10 (1980) ;

In re Fiori, 673 A.2d 905, 910 (Pa. 1996); In re Guardianship of

Grant, 747 P.2d 445, 455 (Wash. 1987), modified, 757 P.2d 534

(Wash. 1988) ; In re L.W., 482 N.W.2d 60, 71 (Wis. 1992).

with society's basic conception of personal dignity.

_.. It is this right against intrusion—not a general

right to control the timing and manner of death—

that forms the basis of the constitutional right to

refuse life-sustaining treatment. Restrictions on sul-

cide, by contrast, entail no such intrusions, but simply

prevent individuals from intervening in the natural

process of dying.

WHEN DeatH Is Soucnt 71.

The decision respondents urge upon this Court not only

would overturn the assisted suicide statutes throughout the

States, but also would undermine the right of public and

private actors to intervene to prevent suicide and jeop-

ardize the authority of public health officials to institu-

tionalize for treatment persons who attempt suicide. More-

over, recognition of a right to suicide assistance could

easily lead to the legalization of “homicide by consent.”

The Ninth Circuit views this possible development with

complete equanimity. Compassion in Dying, 79 F.3d at

831-32.

Notwithstanding their disclaimers, the right respond-

ents ask this Court to recognize could not be limited to

mentally competent, terminally ill patients. This is appar-

ent from respondents’ reliance upon this Court’s abortion

jurisprudence and the extensive case law that has developed

in support of the right to refuse medical treatment. If

abortion jurisprudence is the source of a right to suicide,

the States would be powerless to examine the reasons per-

sons would want to kill themselves and then, based on that

examination, permit some suicides (the “rational” ones)

and forbid others (the irrational ones). See Casey, 505

U.S. at 879 (“[the] State may not prohibit any woman

from making the ultimate decision to terminate her preg-

nancy before viability”).

The case law recognizing a right to refuse treatment

offers even less reason to believe that a right to suicide

(or suicide assistance) could be contained. The right to

refuse unwanted medical treatment, including life-sustain-

ing medical treatment, may be exercised b persons

aap Gat tommindiiy 8 end for Gomees abe tn on cam

—. See Edward R. Grant and Paul Benjamin Linton,

7 f or Reproach? Euthanasia Rights in the Wake of

er 16, 74 OREGON L. Rev. 449, 459-61 & nn. 36-

ne 5) (listing cases). A right to assistance in com-

ay : be way once established, would inevitably expand

incl the incompetent and those who are not termi-

nally ill, as the Ninth Circuit freely acknowledged.” See

generally Grant and Linton, Relief or Reproach? 74

OREGON L. REV. at 516-25 & nn. 293-328, vi

Only three years ago, the Supreme Court of

ago, Canada

was asked to legalize the same practice of physician-

—, suicide that respondents urge upon this Court.

9 riguez v. British Columbia, [1993] 3 S.C.R. 519

he Court refused to do so in an opinion that bears

careful reading. The prohibition of assisted suicide the

Co stated, 1s valid and desirable legislation which ful-

the government's objectives of preserving life and pro-

tecting the vulnerable.” Id. at 590. A “blanket rohibi-

tion” of assisted suicide is neither arbitrary nor unfair in

the sense of being “unrelated to the state’s interest in

protecting the vulnerable.” /d. at 595.

[The law against assisted suicide] has as j

. . r

- BS. protection of the vulnerable who aA, be

- in moments of weakness to commit suicide.

S purpose is grounded in the state interest in

protecting life and reflects the policy of the state

that human life should not be depreciated by allow-

ing life to be taken. This policy finds expression

___ in the provisions of our Criminal Code which prohibit

os aa ;

- ate =n in Dying, 79 F.3d at 816: “Our conclusion

prtcen ae 4 a a 4 bw not limited to, the plight of mentally

; yi ults. We are influenced as well b

= .— such as those whose existence is rh sat Ay

or @ permanent and irreversible state of

sciousness.” Jd. at 832 n. 120 (“we should make oy

: clear that i-

sion of a duly-appointed surrogate decision maker is bn all ao

purposes the decision of the patient himself”).

murder and other violent acts against others notwith-

standing the consent of the victim, ... .-

Id. The Court declined to sanction assisted suicide, even

for the terminally ill, because “the active participation by

one individual in the death of another is intrinsically

morally and legally wrong” and “there is no certainty

that abuses can be prevented by anything less than a com-

plete prohibition.” Jd. at 601. “Creating an exception

for the terminally ill might . . . frustrate the purpose of

the legislation of protecting the vulnerable because ade-

quate guidelines to control abuse are difficult or impos-

sible to develop.” Jd. The law against assisted suicide

“may discourage those who consider that life is unbear-

able at a particular moment, or who perceive themselves

to be a burden upon others, from committing suicide.” Jd.

at 608.

To confirm the right of the States to preserve and

protect human life, and to prevent the abuses that would

arise if assisted suicide were legalized, amici ask the Court

to uphold the New York and Washington statutes banning

assisted suicide.

CONCLUSION

For the foregoing reasons, amici curiae respectfully re-

quest this Honorable Court to reverse the judgments in

Cases 95-1858 and 96-110.

Respectfully submitted,

PAUL BENJAMIN LINTON *

CLARKE D. FoRsYTHE

AMERICANS UNITED FOR LIFE

343 S. Dearborn Street Suite 1804

Chicago, Illinois 60604

(312) 786-9494

November 7, 1996 * Counsel of Record

APPENDIX

List of Amici from the New York General Assembly

Senator Kenneth P. La Valle

(Rep.-Conserv.-Ind.-Property Tax Cut)

Chairman, Higher Education Committee

Senator Ceasar Trunzo ( Rep. )

Chairman, Civil Service

& Pensions Committee

Senator Owen Johnson (Rep. )

Vice-President Pro Tem

Senator Kemp Hannon (Rep.)

Chairman, Health Committee

Senator Dean G. Skelos ( Rep.)

Senator Frank Padavan ( Rep. )

Chairman, Cities Committee

Senator George Onorato (Dem.)

Secretary, Senator Minority Conference

Ranking Minority Member,

Veterans Committee

Senator Serphin R. Maltese (Rep. )

Chairman, Elections Committee

Senator Seymour P. Lachman (Dem.)

Senator John J. Marchi (Rep.)

Chairman, Corporations, Authorities &

Commissions Committee

Senator Olga A. Mendez (Dem.)

Chairwoman, Senate Minority Conference

Ranking Minority Member,

Social Services Committee

Senator Larry Seabrook (Dem.)

Senator Joseph R. Holland ( Rep. )

Chairman, Social Services Committee

Senator William J. Larkin, Jr. (Rep. )

Chairman, Racing and Wagering Committee

Senator Hugh T. Farley (Rep.)

Senate Majority Whip

Chairman, Banks Committee

Senator John A. De Francisco (Rep.)

Chairman, Tourism, Recreation &

Sports Development Committee

Senator Jess J. Present (Rep.)

Deputy Majority Leader (Administration)

Chairman, Commerce, Economic Development

& Small Business Committee

1st District

3rd District

4th District

6th District

9th District

11th District

14th District

15th District

22nd District

24th District

28th District

33rd District

38th District

39th District

44th District

49th District

56th District

Senator Dale M. Volker (Rep.)

Chairman, Codes Committee

Assemblyman Robert C. Wertz (Rep.Conserv.)

Assemblyman Thomas F. Barraga (Rep.)

Ranking Minority Member

Education Committee

Assemblyman John J. Flanagan (Rep.-Conserv.)

Assemblyman James D. Conte (Rep.)

Ranking Minority Member,

Governmental Employees Committee

Assemblyman Philip B. Healey (Rep.)

Assembly Deputy Minority Leader

Assemblyman William Scarborough (Dem.)

Assemblyman Denis J. Butler (Dem.)

Assistant Speaker Pro Tem

Assemblywoman Catherine Nolan (Dem.)

Chairwoman, Labor Committee

Assemblyman Anthony S. Seminerio (Dem.)

Majority Whip

Assemblyman Anthony J. Genovesi (Dem.)

Chairman, Oversight, Analysis &

Investigation Committee

Assemblyman Jules Polonetsky (Dem. )

Assemblywoman Elizabeth A. Connelly (Dem.)

Speaker Pro Tem

Assemblyman Eric N. Vitaliano ( Dem.)

Chairman,

Governmental Employees Committee

Assemblywoman Aurelia Greene ( Dem.)

Chairwoman, Banks Committee

Assemblyman Sam Colman ( Dem.)

Chairman, Majority Program Committee

Assemblyman Patrick R. Manning

(Rep.Freedom )

Ranking Minority Member,

Correction Committee

Assemblyman Robert A. D’Andrea (Rep.)

Assemblyman James N. Tedisco (Rep.)

Assemblyman John J. McEneny ( Dem.)

Assemblyman Robert G. Prentiss (Rep. )

Ranking Minority Member,

Veterans Affairs Committee

Assemblyman David R. Townsend, Jr.

(Rep.-Conserv. )

Ranking Minority Member,

Labor Committee

59th District

6th District

7th District

9th District

10th District

12th District

29th District

36th District

87th District

88th District

39th District

46th District

59th District

60th District

77th District

93rd District

99th District

100th District

103rd District

104th District

107th District

115th District

Assemblyman Bernard J. Mahoney (Rep.)

Assemblyman Daniel J. Fressenden (Rep.)

Ranking Minority Member,

Environmental Conservation Committee

Assemblyman Joseph T. Pillittere (Dem.)

Chairman, Tourism, Arts &

Sports Development Committee

Assemblyman David E. Seaman (Rep.)

Assemblyman Paul A. Tokasz (Dem.)

Chairman, Election Law Committee

Assemblyman Richard J. Keane (Dem.)

Assemblyperson Sandra Lee Wirth (Rep. )

120th District

125th District

138th District

189th District

143rd District

145th District

148th District

List of Amici from the Washington General Assembly

Senator John Moyer, M.D. (Rep.)

Senator James E. West (Rep.)

Rep. Assistant Floor Leader

Senator Alex Duccio (Rep.)

Rep. Deputy Floor Leader

Senator Joseph P. Zarelli (Rep.)

Senator Daniel P. Swecker (Rep.)

Senator Jim Hargrove (Dem.)

Senator Bob Oke (Rep.)

Senator Pam Roach (Rep.)

Senator Gary Strannigan (Rep.)

Senator Emilio Cantu (Rep.)

Senator Jeanine Long (Rep.)

Representative Mike Sherstad (Rep.)

Representative Tom Campbell (Rep.)

Representative Scott Smith (Rep.)

Representative Duane Sommers (Rep.)

Representative Cathy McMorris (Rep.)

Representative Larry Sheahan (Rep.)

Chairman, House Law & Justice Committee

Representative Mark G. Schoesler (Rep.)

Assistant Majority Floor Leader

Representative Barney Beeksma (Rep.)

Representative Joyce Mulliken (Rep.)

Representative Jim Honeyford (Rep.)

Representative Steve Hargrove (Rep.)

Representative Jim Buck (Rep.)

Representative Grant O. Pelesky (Rep.)

Representative Sarah M. Casada (Rep.)

Representative Lois McMahan (Rep.)

Assistant Majority Whip

Representative Gigi Talcott (Rep.)

Majority Whip

Representative Mike Carrell (Rep.)

Representative Tim Hickel (Rep.)

Representative Les Thomas (Rep.)

Representative Peggy Johnson (Rep.)

Representative Tim Sheldon (Dem.)

Representative John Koster (Rep.)

Representative Val Stevens ( Rep.)

Assistant Majority Floor Leader

Representative Chery! Hymes (Rep.)

Representative Eugene Goldsmith (Rep.)

Republican Caucus Vice Chair

Representative Kathy Lambert (Rep.)

Representative Bill Backlund (Rep.)

3rd District

6th District

14th District

18th District

20th District

24th District

26th District

31st District

38th District

41st District

44th District

lst District

2nd District

6th District

7th District

9th District

10th District

13th District

15th District

23rd District

24th District

25th District

26th District

28th District

30th District

31st District

35th District

39th District

40th District

42nd District

45th District

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.