Amicus Curiae Brief — Washington v. Glucksberg

Supreme Court brief1997

Ask Donna

What actually matters in this document.

Text

Nos. 95-1858, 96-110

(WY, Supreme Court, U.S. |

sf Ae ED

In the Supreme Court of the Unit d States

OCTOBER TERM, 1996

Dennis C. Vacco, Attorney General of the State of

New York, Georce E. Pataki, Governor of the State

of New York, and RoBert M. MorGENTHAU, District

Attorney of New York County,

Petitioners,

Vv.

Trotny E, Quitt, M.D., SAMUEL C. KLAGsBRUN, M.D.,

and HowarD A. GROSSMAN, M.D..

Respondents.

STATE OF WASHINGTON, and CHRISTINE GREGOIRE,

Attorney General of the State of Washington,

. Petitioners,

HAROLD GLUCKSBERG, M.D., ABiGAIL HALPERIN, M.D..

THOMAS A. PRESTON, M.D., and

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

Respondents.

On Writs of Certiorari to the

United States Courts of Appeals

for the Second and Ninth Circuits

BRIEF AMICUS CURIAE OF THE

CATHOLIC MEDICAL ASSOCIATION

IN SUPPORT OF PETITIONERS

JOSEPH J. FRANK

SERGIO ALVAREZ-MENA, III

PETER BUSCEMI *

MORGAN, LEwIs & Bockrus LLP

1800 M Street, N.W.

Washington, D.C. 20036

(202) 467-7190

* Counsel of Record

—_ Sse

WILSON - Eras Printings Co., Inc. - 789-0096 - WASHINGTON, D.C. 20001

QUESTION PRESENTED

Whether the New York and Washington statutes

prohibiting physician assistance in suicide violate either

the Due Process Clause or the Equal Protection Clause of

the Fourteenth Amendment.

(i)

TABLE OF CONTENTS

Page

QUESTION PRESENTED .22020...........c.cccccccccceccecceceeeeee i

TABLE OF AUTHORITIES... iv

INTEREST OF THE AMICUS CURIAE 1

SUMMARY OF ARGUMENT |... 2

Ee ee 4

I. STATES MAY PROHIBIT ASSISTED SUI-

CIDE CONSISTENT WITH THE DUE PRO-

CESS CLAUSE BECAUSE SUCH PROHIBI-

TIONS FURTHER SOCIETY’S UNQUALI-

FIED INTEREST IN LIFE . metmnigiy - 6

A. A Right to Give or Receive Assistance in

Suicide Is Neither Implicit in the Concept of

Ordered Liberty Nor Deeply Rooted in This

Nation’s History and Tradition... : 7

B. The State Has a Compelling Interest in Pro-

tecting, and Indeed an Obligation to Protect,

the Lives of Its Citizens... ic cemeriialtanoeen 13

Il. STATES MAY PROHIBIT ASSISTED SUI-

CIDE CONSISTENT WITH THE EQUAL

PROTECTION CLAUSE BECAUSE, UNLIKE

FORGOING MEDICAL TREATMENT, AS-

SISTED SUICIDE ALWAYS INVOLVES AN

| OD i cciinhciesinndillnstiidendic 18

| I ealedcernitcictrentatlndniitinientnss 26

| i arerienretitenttenemnisininieieenanean la

RO ng TE OC 4a

Cg a er ee jh.

TABLE OF AUTHORITIES

CASES Page

Barber v. Superior Court, 147 Cal. App. 3d 1006,

195 Cal. Rptr. 484 (1983) __

Bartling v. Superior Court, 163 Cal. App. 3d 186,

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

Blackburn v. State, 23 Ohio St. 146 (1872) __.4-5, 14, 7a

Bouvia v. Superior Court, 179 Cal. App. 3d 1127,

225 Cal. Rptr. 297 (1986) ‘ 2a

Bowers v. Hardwick, 478 U.S. 186 (1986)... 6, 8, 10

Brophy v. New England Sinai Hosp., 398 Mass.

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

In re Browning, 568 So. 2d 4 (Fla. 1990)... la

City of Cleburne v. Cleburne Living Ctr., 473

U.S. 432 (1985) . 18, 25

Collins v. City of Harker Heights, 503 US. 115

Ee Ne sas Re oe 6

Commonwealth v. Bowen, 13 Mass. 356 (1816) _.. 7a

Commonwealth v. Mink, 123 Mass. 422 (1877). 7a

In re Conroy, 98 N.J. 321, 486 A.2d 1209 (1985). la

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

U.S. 261 (1990) .. —_ ———

Cruzan v. Harmon, 760 S.W2a 408° (Mo. 1988)

(en banc), aff'd sub nom. Cruzan v. Director.

Missouri Dep’t of Health, 497 U.S. 261 (1990). 6, 16

DeGrella ex rel. Parrent v. Elston, 858 S.W.2d

Ge Gn tice la

In re Doe, 411 Mass. 512, 5883 N.E.2d 1263, cert.

denied, 508 U.S. 950 (1992) se la

Donaldson v. Lundgren, 2 Cal. App. 4th 1614, 4

SF § | tt aes SS. eee 2a

In re Eichner, 102 Misc. 2d 184, 423 N.Y.S.2d 580

(Sup. Ct. 1979), aff'd as modified sub nom.

Eichner v. Dillon, 73 A.D.2d 431, 426 N.Y.S.2d

517 (App. Div. 1980), aff'd as modified sub nom.

In re Storar, 52 N.Y.2d 363, 420 N.E.2d 64, 438

N.Y.S.2d 266, cert. denied, 454 U.S. 858(1981) ..

In re Estate of Longeway, 133 Til. 2d 33, 549

N.E.2d 292 (1989)

In re Farrell, 108 N.J. 335, 529 A.2d 404 (1987)...

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

PEER ee ee eee eee ewe ewe eee

Pre PP

TABLE OF AUTHORITIES—Continued

Page

In re Fiori, 488 Pa. Super. 610, 652 A.2d 1350

(1996) (en banc), aff'd, 673 A.2d 905 (Pa.

en ee 3a

Foody v. Manchester Mem. Hosp., 40 Conn. Supp.

127, 482 A.2d 713 (Super. Ct. 1984)... 2a

Fosmire v. Nicoleau, 75 N.Y.2d 218, 551 N.E.2d

77, 661 N.Y.S.2d 876 (1990)... 2a

Furman v. Georgia, 408 U.S. 238 (1972)... 10, 14

In re Gardner, 534 A.2d 947 (Me. 1987)... la

In re Grant, 109 Wash. 2d 545, 747 P.2d 445

(1987), modified on other grounds, 757 P.2d

I I ST Oe ee 2a

Hurtado v. California, 110 U.S. 516 (1884). 13-14

Jacobson v. Massachusetts, 197 U.S. 11 (1905)... 9

In re Joseph G., 34 Cal. 3d 429, 194 Cal. Rptr. 163

Re a eee ee 10-11

Kadrmas v. Dickinson Pub. Sch., 487 U.S. 450

(1988) . elisiten 25

In re Lawrence, 579 N.E.2d 32 (Ind. 1991) .. alias la

Leach v. Akron Gen. Med. Ctr., 68 Ohio Misc. 1,

426 N.E.2d 809 (Ct. C.P. 1980) .. 3a

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

appeal docketed, Nos. 95-35804, 95-35805, 95-

35854, ne 95-35949 (9th Cir. Aug. 7,

1995) . sid 15

In re L.W., “167 Wis. “2a 53, 482 N.W.2d 60

ee OA ee ae ae OL Na 2a

McConnell v. Beverly Enters, 209 Conn. 692, 553

NY la

MfeGowan v. Maryland, 366 U.S. 420 (1961). 26

McKay v. Bergstedt, 106 Nev. 808, 801 P.2d 617

RE EY OS a ae OSS a la

McMahan v. State, 168 Ala. 70, 53 So. 89 (1910). 7a

Michael H. v. Gerald D., 491 U.S. 110 (1989). 7

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

(1977) ... 8,11, 12

Olmstead v. ‘United States, 207 US. 438 (1928),

overruled by Katz v. United States, 389 U.S.

0, Ee ae eee eee 8

TABLE OF AUTHORITIES—Continued

Palko v. Connecticut, 302 U.S. 319 (1987) _......... 8,11

Paris Adult Theatre I v. Slaton, 413 U.S. 49

(1973) 9-10

People v. Adams, 216 Cal. App. 3d 1431, 265 Cal.

Rptr. 568 (1990) 2a

People v. Kevorkian, 447 Mich. 436, 527 N.W.2d

714 (1994), cert. denied, 115 S. Ct. 1795 (1995). 9,11

la, 7a

Personnel Adm’r of Mass. v. Feeney, 442 U.S. 256

(1979) 23

Planned Parenthood v. Casey, 505 US. 888

Se ine ...T, 11-12, 18

Plyler v. Doe, 457 U.S. 202 (1982) —_ x

Prince v. Massachusetts, 321 U.S. 158 (1994)... 9

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

In re Quinlan, 70 N.J. 10, 355 A.2d 647, cert. de-

nied, 429 U.S. 922 (1976) 2a

Rasmussen v. Fleming, 154 Ariz. 207, 741 P24

Ee la

Reno v. Flores, 607 U.S. 292 (1998) . neniiiennene 7

Rodriguez v. British Columbia (Attorney Gen-

eral), 3 S.C.R. 519 (Can. 1998) 0.00. 9

Roe v. Wade, 410 US. 113 (1973) .. ——

In re Rosebush, 195 Mich. App. 675, 491 N.W.2d

EEE SE ER 2a

Rutherford wv. United States, 438 F. Supp. 1287

(W.D. Okla. 1977) 17

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

App. 1978), aff'd, 379 So. 2d 359 (Fla. 1980). 2a

In re Severns, 425 A.2d 156 (Del. Ch. 1980)... 2a

State v. Jones, 86 8.C. 17, 67 S.E. 160 (1910)... Ta

State v. McAfee, 259 Ga. 579, 385 S.E.2d 651

a ee a ae la

State v. Willis, 255 N.C. 473, 121 S.E.2d 854

(1961) Ta

In re Storar, 52 N.Y.2d 363, 420 N.E.2d 64, 438

N.Y.S.2d 266, cert. denied, 454 U.S. 858 (1981). 2a

Superintendent of Belchertown v. Saikewicz, 373

Mass. 728, 370 N.E.2d 417 (1961)

i TE A Tc

vii

TABLE OF AUTHORITIES—Continued

Thor v. Superior Court, 5 Cal. 4th 725, 855 P.2d

375, 21 Cal. Rptr. 2d 357 (19938) 0...

United States v. Bailey, 444 U.S. 394 (1980) ........

United States v. Brandt (the Medical Case), I!

Trials of War Criminals Before the Nuremberg

Military Tribunals Under Control] Council Law

No. 10 (1949)

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

United States v. Stanley, 483 U.S. 669 (1987)...

Von Holden v. Chapman, 87 A.D.2d 66, 450

N.Y.S.2d 623 (App. Div. 1982) ...........................

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

STATUTES AND CONSTITUTIONAL

PROVISIONS

Ala. Code § 13A-6-4 (1995) 220

Ala. Code § 22-8A-10 (1995) . oa ee

Alaska Stat. § 11.41.120(a) (2) (1995) . -_ sicaapattna

Alaska Stat. § 18.12.080(f) (1995) 000000.

Ariz. Rev. Stat. Ann. § 13-1103(A) (3) (1995)...

Ariz. Rev. Stat. Ann. § 36-3210 (1995) _.....

Ark. Code Ann. § 5-10-104(a) (2) (Michie 1995)...

Ark. Code Ann. § 20-17-210(g) (Michie 1995) ...

Cal. Health & Safety Code § a (West

0 OO—O EE

Cal. Penal Code § 401 (West 1995) 0. litany

Colo. Rev. Stat. Ann. § 15-18-112(1) (West

I esse ccutneneeesnereengeenenennsanstnensmistsipinemeteonmeemencesines

ee ee

Conn. Gen. Stat. Ann. § 19a-575 (West 1995)...

Conn. Gen. Stat. Amn. § 53a-56(a)(2) (West

EE AE aoe

Del. Code Ann. tit. 11, § 645 (1995)

Del. Code Ann. tit. 16, § 2507 (1995) —..

D.C. Code Ann. § 6-2430 (1995)

D.C. Code Amn. § 21-2212 (1995) iiiattiioncidiiadlbties

Fla. Stat. Ann. § 765.309(1) (West 1995)...

BESSEP FF F PE PSEC EP ES

viii

TABLE OF AUTHORITIES—Continued

Fla. Stat. Ann. § 782.08 (West 1995) 200

Ga. Code Ann. § 16-5-5(b) (1995) 20

Ga. Code Ann. § 31-32-9 (1995) ates

Ga. Code Ann. § 31-36-2 (1995) . 000

Haw. Rev. Stat. § 327D-13 (1995)

Haw. Rev. Stat. § 707-702 (1995) ..

Idaho Code § 39-161(1) (1995) 000

Ill. Comp. Stat. ch. 720, para. 5/12-31 (Smith-

IR A TIGRE RS a RE Mi SS ES

Ill. Comp. Stat. ch. 755, para. 35/9(f) (Smith-

i Ee ee ee

Ill. Comp. Stat. ch. 755, para. 40/50 (Smith-Hurd

1995) , =

Ind. Code Ann. § 16-36-1-13 (West 1995) . JS Ae

Ind. Code Ann. § 16-36-4-19 (West 1995)

Ind. Code Ann. § 35-42-1-2.5(b) (West 1995) sinetbeds

lowa Code Ann. § 144A.11.6 (West 1995)...

Iowa Code Ann. § 144B-12.2 (West 1995)...

Iowa Code Ann. §§ 707A.2, 707A.3 (West 1996)

Kan. Stat. Ann. § 21-3406 (1995)

Kan. Stat. Ann. § 65-28,109 (1995) 0.

Ky. Rev. Stat. Ann. § 216.302 (Baldwin 1995)...

Ky. Rev. Stat. Ann. § 311.687 (Baldwin 1995)...

La. Rev. Stat. Ann. § 14: 32.12 (West 1995)

La. Rev. Stat. Ann. § 1299.58.10 (West 1995) _.......

Me. Rev. Stat. Ann. tit. 17-A, § 204 (West 1995)

Me. Rev. Stat. Ann. tit. 18-A, § 5-813 (West 1995) .

Md. Code Ann., Health-Gen. § 5-611 (1995) —...........

Mass. Gen. Laws Ann. ch. 201D, $12 (West

| a hee “Em

Mich. Comp. Laws Ann. § 700. 496 (20) (West

1995) ... me

Minn. Stat. “Ann. § 1458. i4 (West 1995) _

Minn. Stat. Ann. § 609.215 (West 1995)

Miss. Code Ann. § 41-41-117(2) (4998).

Miss. Code Aun. § 97-83-49 (1998) _. adie

Mo. Ajin. Stat. § 459.055 (5) (Vernon 1995) . = _—

Mo. Ann. Stat. § 565.028/1) (2) (Vernon 1996)

— emecs

my’

oeegeeses g@ BeeeeEeEeeeEeEEE & & BeeEEES F

TABLE OF AUTHORITIES—Continued

Mont. Code Ann. § 45-5-105 (1993). .......................

Mont. Code Ann. § 50-9-205(7) (1995)... .............

Neb. Rev. Stat. § 20-412(7) (1995)...

Neb. Rev. Stat. § 28-307 (1995) ........ oe.

Nev. Rev. Stat. § 449.670(2) (1993) 0...

N.H. Rev. Stat. Ann. § 187-H:10(II) (1995)...

N.H. Rev. Stat. Ann. § 680:4 (1995) ..................

N.J. Stat. Ann. § 2C: 11-6 (West 1995)...

N.J. Stat. Ann. § 26: 2H-54(e) (West 1995)...

N.M. Stat. Ann. § 24-7-8 (Michie 1996)

N.M. Stat. Ann. § 30-2-4 (Michie 1995)... ...........

N.Y. Penal Law § 120.30 (McKinney 1995)...

N.Y. Penal Law § 125.15 (McKinney 1995) —_—

N.Y. Pub. Health Law ee henna

1995) ... a

N.C. Gen. Stat. § 90-820(b) (1995) . 7. oe eer ne

N.D. Cent. Code § 12.1-16-04 (1995)...

N.D. Cent. Code § 23-06.4-01 (1995)...

N.D. Cent. Code § 23-06.5-01 (1995)

Ohio Rev. Code Ann. § 2133.12(d) (Baldwiz:

1996) _.

Okla. Stat. Ann. tit. 21, $812 (West 1995).

Okla. Stat. Ann. tit. 68, § 3101.12(¢) (West

Or. Rev, Stat. § 127.570 (1995)... :

Or. Rev. Stat. § 163.125(b) (1995)...

18 Pa. Cons. Stat. Ann. § 2505 (1995)...

20 Pa. Cons. Stat. Ann. § 5402(b) (1995) ee

P.R. Laws Ann. tit. 88, § 4009 (1990)...

R.1. Gen. Laws § 23-4.10-9(f) (1995) 0.

R.I. Gen. Laws § 23-4.11-10(f) (1995) 000

S.C. Code Ann. § 44-77-1380 (Law. Co-op. 1993)

8.D. Codified Laws Ann. § 22-16-87 (1996)...

S.D. Codified Laws Ann. § 34-12-20 (1996)

Tenn. Code Ann. § 82-11-110 (1995) .

Tenn. Code Ann. § 39-13-216 (1995)

Tex. Health & Safety Code Ann. § 672. 020 (West

I ot.

Tex. Penal Code Ann. § 22.08 (West 1995). Sadat

sa ° |

Ss Sees eeseree

PESSSTSSSSPP KS FF

TABLE OF AUTHORITIES—Continued

21 U.S.C. $§ 201, 856 (1996) .............--.----.--.2--200++ ats

Utah Code Ann. § 75-2-1118 (1995) -.............--------+

VI. Code Ann. tit. 14, §2141 (1994) ...............

Vt. Stat. Ann. tit. 18, §5260 (1995) ...............

Va. Code Ann. § 54.1-2990 (Michie 1995) .................

Wash. Rev. Code Ann. § 9A.36.060 (West 1995)....

Wash. Rev. Code Ann. § 70.122.100 (West 1995) ....

W. Va. Code § 16-80-10 (1995) ..............-......--

Wis. Stat. Ann. § 154.11(6) (West 1995)...

Wis. Stat. Ann. § 940.12 (West 1995) .......................

Wyo. Stat. § 8-6-211 (1996)... eee

Wyo. Stat. § 6-2-107 (1995) ................. Pa ae Ooo oes

Wyo. Stat. § 35-22-109 (1995)... eee

MISCELLANEOUS

American Bar Association, Commission on Legal

Problems of the Elderly, Memorandum of Jan.

17, 1992, reprinted in 8 Issues L. & Med. 117

RSS STE RR Fae F ¢

I criccnnscmnccpuncrequennecsemnaminineguacinananccstenspnen

British Medical Association, Euthanasia: Report

of the Working Party to Review the British

Medical Association’s Guidance on Euthanasia

AAAS TES ie RR AI: Te 2

Stephen L. Carter, The Culture of Disbelief: How

American Law and Politics Trivialize Religious

eG haes CHO ocutintetindhinindbatiannstamcrbietmeeviatinsitinuhiion

Mark E. Chopko & Michael F. Moses, Assisted Sui-

cide: Still A Wonderful Life?, 70 Notre Dame

Re, Bn, BD BED vedictvtascestintnnitpenindietiicheninnnisinns

Oliver Wendell Holmes, Jr., Speech to Bar Associa-

tion of Boston (Mar. 7, 1990), in Collected

Legal Papers 244, 248 (1920) ..............-.---.-...

Yale Kamisar, Against Assisted Suicide—Even a

Very Limited Form, 72 U. Det. Mercy L. Rev.

GE CD dntstecinmecsnstnccicncitanarttbsctinniedandihalinci

Michael H. Levy, Drug Therapy: Pharmacologic

Treatment of Cancer Pain, 385 New Eng. J.

ko fll ie

TABLE OF AUTHORITIES—Continued

John Locke, Two Treatises on Government (Peter

CES SIS SD es Ne a oe

Thomas J. Marzen et al., Suicide: A Constitutional

Right ?, 24 Duq. L. Rev. aE a AS See

New York State Task Force on Life and the Law,

When Death is Sought: Assisted Suicide and Eu-

thanasia in the Medical Context (May 1994) .

Pontifical Council for Pastoral Assistance to

Health Care Workers, Charter for Health Care

Workers (Boston: Daughters of St. Paul

TO sieenaceteitadiinempeanesctengncipenimeetancnacieentinatincdil 14, 20,

Pope John Paul II, Address to the Participants

at the International Congress on Assistance to

the Dying, in OssRom, Mar. 18, 1992...

Pope John Paul II, Encyclical Letter Evangelium

Sacred Congregation for the Doctrine of the Faith,

Declaration on Euthanasia (Boston: Daughters

Sacred Congregation for the Doctrine of the

Faith, Instruction Donum Vitae, in 80 Actus

Apostolicae Sedes 75-76 (1988)...

Select Committee on Medical Ethics of the House

of Lords, Report of the Select Committee on

Medical Ethics (Jan. 1994) ..

United States Commission on Civil Rights, ‘Med-

ical Discrimination Against Children with Dis-

I i cai are cele.

Manuel G. Velasquez, Defining Suicide, 3 Issues

RE Fe ee ee

Page

10-11

21, 25

Iu the Supreme Court of the United States

OCTOBER TERM, 1996

No. 95-1858

Dennis C. Vacco, Attorney General of the State of

New York, GeorGe E. PATAKI, Governor of the State

of New York, and RoBERT M. MorRGENTHAU, District

Attorney of New York County,

‘4 Petitioners,

TrowoTuy E. Quiit, M.D., SAMUEL C. KLAGSBRUN, M.D.,

and HowarpbD A. GROSSMAN, M.D.,

Respondents.

No. 96-110

STATE OF WASHINGTON, and CHRISTINE GREGOIRE,

Attorney General of the State of Washington,

. Petitioners,

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

THOMAS A. PRESTON, M.D., and

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

Respondents.

On Writs of Certiorari to the

United States Courts of Appeals

for the Second and Ninth Circuits

BRIEF AMICUS CURIAE OF THE

CATHOLIC MEDICAL ASSOCIATION

IN SUPPORT OF PETITIONERS

INTEREST OF THE AMICUS CURIAE

The Catholic Medical Association (“CMA”) is a non-

profit, public service organization founded in 1932. The

CMA promotes the principles of Roman Catholic medical

ethics in science and in the practic: of medicine. The

CMA includes more than one thousand physicians and

coordinates the activities of more than 80 regional Cath-

olic physicians’ guilds in the United States and Canada.’

Since 1932, the CMA has published The Linacre Quar-

terly, a leading scholarly journal on biomedical ethics.

The CMA’s companion Linacre Institute routinely pro-

duces studies on important medical and moral issues. The

CMA also serves as a resource for the medical community,

holding annual conferences where scholars and health care

professionals meet and interact.

The CMA, as an amicus curiae before this Court, seeks

to contribute its professional and ethical perspective on

physicians and their role in treating the terminally ill.

Since its inception, the CMA has brought the practical

experience and scholarly expertise of its members to bear

on important societal issues. The CMA wishes to share

with this Court the insights of the scholars and physicians

that are its practicing members.

In addition to its own experience, the CMA hopes to

inform the Court of a central theme in Catholic medical

ethics, the distinction between meeting death with peace

and dying at one’s own hand.

For decades, Catholic religious and medical leaders

have differentiated between suicide and the forgoing of

life support. In rejecting such a distinction, the Second

and Ninth Circuits broke from a venerable historical tra-

dition. As a unique part of that tradition, the CMA asks

the Court to consider its arguments in support of the

Petitioners.

SUMMARY OF ARGUMENT

A right to give or receive assistance in suicide is neither

implicit in the concept of ordered liberty nor deeply

rooted in this Nation’s history and tradition. Other than

the Ninth Circuit in its decision below, every court that

1 The parties in both Vacco and Glucksburg have consented to

the filing of this brief. The parties’ letters of consent have been

submitted to the Clerk of the Court.

has considered physician assisted suicide has concluded

that there is no such right. Indeed, even the Second Cir-

cuit, which invalidated New York's prohibition of assist-

ance in suicide on equal protection grounds, concluded

that such a right “finds no cognizable basis in the Con-

stitution’s language or design.”

Respondents claim that assisted suicide involves a deci-

sion concerning one’s own body and that, as such, it falls

within the realm of personal liberty that government may

not enter. But the concept of ordered liberty under the

Due Process Clause does not equate with unrestrained

autonomy, and this Court has never endorsed demands to

assist those who would make seemingly personal choices

that diminish their own lives or the common good.

A right to assisted suicide finds no support in this Na-

tion’s history and tradition. At common law, a person

who assisted another to commit suicide was guilty of

murder. At the time of the Fourteenth Amendment, the

vast majority of states explicitly prohibited assisted suicide.

Even today, forty-five states continue to criminalize the

practice. See Appendix C.

Weighing against any interest in assisted suicide is

the State’s compelling interest in protecting, indeed its

obligation to protect, the lives of its citizens. Given the

origins of government, and the nature of the bargain

between the State and its citizens, the State has an obli-

gation to protect life simply because of its existence.

This obligation does not vary with the circumstances of

particular citizens, but applies to all persons under the

State’s authority and protection. In rejecting society's

obligation to protect the lives of all its citizens, the Ninth

Circuit erred.

The Second Circuit similarly erred in concluding that

New York’s prohibition against assistance in suicide vio-

lates the Equal Protection Clause. Although the Constitu-

tion requires that all persons similarly situated should be

treated alike, the Constitution does not require things

that are different to be treated as though they were the

same. Physician assisted suicide is fundamentally different

from forgoing medical treatment because, unlike forgoing

medical treatment, assisted suicide always involves an

intent to kill. In confusing the distinction between knowl-

edge and intent, the courts of appeals rejected the com-

mon-sense notion that one may choose to forgo dispropor-

tionately burdensome medical treatment and at the same

time retain a strong desire to live. Unlike some who

choose to forgo medical treatment, however, those who

engage in assisted suicide have death as their purpose.

Such a distinction based on intent more than satisfies

the constitutional requirement of rationality and non-

arbitrariness.

ARGUMENT

The Declaration of Independence states that it is “self-

evident” that all men “are endowed by their Creator with

certain unalienable Rights,” and that among these rights

are “Life, Liberty, and the Pursuit of Happiness.” It is

no accident that life is listed first. The Due Process

Clause in the Fifth and Fourteenth Amendments also

puts life first: No person shall be deprived of “life, liberty,

or property, without due process of law... .” The reason

for this ordering is apparent. Without life, there can

be no other rights. As Justice Holmes said, “[llife is an

end in itself, and the only question as to whether it is

worth living is whether you have enough of it.” *

Societies throughout history, including our own, have

recognized life and its protection as an unqualified good,

indeed, as the good from which other societal goods de-

rive." Physicians serve society by maintaining life, by

* Oliver Wendell Holmes, Jr., Speech to the Bar Association of

Boston (Mar. 7, 1900) in Collected Legal Papers 244, 248 (1920).

* Society’s unqualified commitment to life runs throughout tradi-

tional jurisprudence. In Blackburn v. State, 28 Ohio St. 146, 163

(1872), for example, the Ohio Supreme Court observed that:

healing patients who request their help, and by promoting

health, which is fundamental to the enjoyment of so many

of life’s virtues. Conversely, American society has always

condemned physicians who stray from the healing path,

who use their knowledge to harm, or who fail to fulfill

their role as guardians of society's interest in life.*

The decisions here under review depart from the tradi-

tional, and salutary, emphasis on the protection of life.

In invalidating New York and Washington State’s prohibi-

tions against assisted suicide, the Second and Ninth Cir-

cuits erred because: (1) a right to assisted suicide is

neither implicit in the concept of ordered liberty nor

deeply rooted in this Nation’s history and tradition; (2)

permitting assisted suicide cannot be reconciled with gov-

[The life of those to whom life has become a burden—of those

who are hopelessly diseased or fatally wounded—nay, even the

lives of criminals condemned to death, are under the protection

of the law, equally as the lives of those who are in the full tide

of life’s enjoyment, and anxious to continue to live.

Accord, 4 William Blackstone, Commentaries on the Laws of Eng-

land *189 (“The suicide is guilty of [an offense} against the

King, who hath an interest in the preservation of all his subjects”).

Similarly, this Court has acknowledged the constitutionality of such

a fundamental choice for life:

[We think a State may properly decline to make judgments

about the “quality” of life that a particular individual may

enjoy, and simply assert an unqualified interest in the preserva-

tion of human life... .

Cruzan v. Director, Missouri Dep't of Health, 497 U.S. 261, 282

(1990). See also Pope John Paul II, Encyclical Letter Evangelium

Vitae { 66 (March 25, 1995) (noting that life is God’s gift and that

suicide is a rejection of that gift); uccord, 1 William Blackstone,

Commentaries on the Laws of England *125 (“Life is the immedi-

ate gift of God, a right inherent by nature in every individual”).

* See, ¢.g., United States v. Brandt (the Medical Case), II Trials

of War Criminals Before the Nuremberg Military Tribunals Under

Control Council Law No. 10, at 181 (1949); see also United States

v. Stanley, 4838 U.S. 669, 708 (1987) (O’Connor, J., concurring in

part dissenting in part).

ernment’s obligation to protect the lives of the governed;

and (3) assisted suicide differs fundamentally for-

going medical treatment, because assisted suicide, by defi-

nition, involves an intent to kill.

I. STATES MAY PROHIBIT ASSISTED SUICIDE

CONSISTENT WITH THE DUE PROCESS CLAUSE

BECAUSE SUCH PROHIBITIONS FURTHER SO-

CIETY’S UNQUALIFIED INTEREST IN LIFE.

This Court understandably has been “reluctant to ex-

pand the concept of substantive due process because

guideposts for responsible decisionmaking in this unchart-

ered area are scarce and open-ended.” Collins v. City of

Harker Heights, 503 U.S. 115, 125 (1992). As the Court

itself has explained, “[t]he Court is most vulnerable and

comes nearest to illegitimacy when it deals with judge-

made constitutional law having little or no cognizable

roots in the language or design of the Constitution. . . .

There should be, therefore, great resistance to expand the

substantive reach of [the Due Process] Clauses, particu-

larly if it requires redefining the category of rights deemed

to be fundamental. Otherwise, the Judiciary necessarily

takes to itself further authority to govern the country

without express constitutional authority.” Bowers v. Hard-

wick, 478 U.S. 186, 194-95 (1986).

Such concerns are no less apt in the area of physician

assisted suicide, where “[b]road policy questions bearing

on life and death issues are more properly addressed by

representative assemblies.” See Cruzan v. Harmon, 760

S.W.2d 408, 426 (Mo. 1988) (en banc), aff'd sub nom.

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

261 (1990). As Judge Kleinfeld wrote in dissent in this

case, “[t}he Founding Fathers did not establish the United

States as a democratic republic so that elected officials

would decide trivia, while all the great questions would

be decided by the judiciary.” Glucksberg App. at 161-62.

Because of the potentially boundless nature of substan-

tive due process claims, this Court, in reviewing such

claims, has stressed the importance of carefully describing

the asserted right and the legal issue that the Court is

being asked to decide. See, e.g., Planned Parenthood v.

Casey, 505 U.S. 833, 847-48 (1992): Michael H. v.

Gerald D., 491 U.S. 110, 118-30 (1989). In the Court's

words, “‘[s]ubstantive due process’ analysis 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) (citations omitted). Interests for which con-

stitutional protection is sought “cannot be described

merely at the level of philosophic abstraction .. . .” Mark

E. Chopko & Michael F. Moses, Assisted Suicide: Still A

Wonderful Life?, 70 Notre Dame L. Rev. 519, 559

(1995). It is critical to determine precisely what right

is being asserted when statutes like those at issue here are

said to violate the Due Process Clause. It is also important

to inquire whether any other due process interests would

be implicated if this Court were to recognize the claimed

physician’s right to assist in suicide.

A. A Right to Give or Receive Assistance in Suicide Is

Neither Implicit in the Concept of Ordered Liberty,

Nor Deeply Rooted in This Nation’s History and

Tradition.

Respondents assert a right, under certain circumstances,

intentionally to terminate the life of a human being—a

human being that the law regards as innocent of any

offense. This case does not involve society’s imposition of

death as a sanction for some heinous wrong. Rather, it

involves an alleged constitutional right to intervene to

introduce a new causative factor, one which, in the absence

of the intervention, would play no role in bringing about

the patient’s death. The Ninth Circuit failed to appreciate

the significance, for constitutional purposes, of such inten-

tional causation of death through the deliberate introduc-

tion of a poisonous drug or other lethal substance. The

court focused incorrectly on the end—-death—trather than

or *he means by which that death occurs. In the court's

words, “it is the end and not the means that defines the

liberty interest.”° By concentrating on the abstract “right

to die,” the court obscured meaningful practical and

constitutional distinctions:

[W]e see no ethical or constitutionally cognizable

difference between a doctor’s pulling the plug on a

respirator and his prescribing drugs which will permit

a terminally ill patient to end his own life... . To

us, what matters is that the dea*h is the intended

result as surely in one case as in the other.

Glucksberg App. at 82 (emphasis supplied).

This Court, however, historically has afforded protec-

tion only to those interests “implicit in the concept of

ordered liberty,” such that “neither liberty nor justice

would exist if they were sacrificed.” Palko v. Connecticut,

302 U.S. 319, 325-26 (1937), quoted in Bowers v. Hard-

wick, 478 U.S. 186, 191-92 (1986). In an alternative

formulation, this Court has described those interests en-

titled to constitutional protection as ones “deeply rooted

in this Nation’s history and tradition.” Moore v. City of

East Cleveland, 431 U.S. 494, 503 (1977).

Other than the Ninth Circuit in the decision below, every

court that has considered physician assisted suicide has

concluded that “the right to commit suicide is neither

implicit i in the concept of ordered liberty nor deeply rooted

in this nation’s history and tradition. It would be an im-

permissibly radical departure from existing tradition, and

® Glucksberg App. at 27. In response to similar arguments nearly

seventy years ago, Justice Brandeis issued his famous warning:

To declare that in the administration of the criminal law the

Against that pernicious doctrine this Court should resolutely

set its face.

Olmstead v. United States, 277 U.S. 438, 468 (1928) (Brandeis, J.,

dissenting), overruled by Katz v. United States, 389 U.S. 347

(1967).

et ay Se tay che ep apna lr Seay

that there is such a fundamental right protected by the

Due Process Clause.” See, e.g., People v. Kevorkian, 447

Mich. 436, 481, 527 N.W.2d 714, 732 (1994), cert.

denied, 115 S. Ct. 1795 (1995). Even the Second Cir-

cuit, which invalidated on equal protection grounds New

York’s prohibition against assistance in suicide, concluded

that “[t}he right to assisted suicide finds no cognizable

basis in the Constitution’s language or design, even in the

very limited cases of those competent persons who, in the

final stages of terminal illness, seek the right to hasten

death.” Vacco App. at 19a.*

The concept of ordered liberty under the Due Process

Clause does not equate with unrestrained autonomy. For

example, this Court has never held that the Constitu-

tion confers an absolute right to do as one pleases with

one’s own body. See, e.g., Roe v. Wade, 410 U.S. 113,

154 (1973) (refusing to recognize such a right). Thus,

a person has a right to refuse medical treatment, but no

right to refuse vaccination from contagious disease.

See Washington v. Harper, 494 U.S. 210, 222 (1990):

Jacobson v. Massachusetts, 197 U.S. 11, 26-27 (1905)

(rejecting autonomy right in favor of the common good).

A person has a right to marry, but no right to marry

his or her blood relatives. A person has a right to direct

the upbringing of his or her children, but no right to ex-

pose them to deadly harm. See Prince v. Massachusetts,

321 U.S. 158, 166 (1944). “The statute books are replete

with constitutionally unchallenged laws against prostitu-

tion, suicide, voluntary self-mutilation, brutalizing ‘bare

fist’ prize fights, and duels, although these crimes may

only directly involve ‘consenting adults.’” Paris Adult

*Courts from other common law jurisdictions have reached

similar conclusions. The Supreme Court of Canada, for example,

has rejected a claim that Section 7 of the Canadian Charter of

Rights and Freedoms, similar in scope to the Due Process Clause.

establishes a fundamental right to physician assisted suicide. See

generally Rodriguez v. British Columbia (Attorney General), 3

S.C.R. 519 (Can. 1998).

Theatre I v. Slaton, 413 U.S. 49, 68 n.15 (1973). In

each of these instances, claims for individual autonomy

must be balanced against, and sometimes subordinated to,

the common good. Indeed, the law has always acted to

restrain choice that harms individual persons. Because

Wwe are a society that “strongly affirms the sanctity of

life,” ‘ this Court has never endorsed demands to assist

those who would make seemingly personal choices that

diminish their own lives or the common good.

Respondents, however, maintain that “there is a realm

of personal liberty which the government may not enter.”

Glucksberg et al., Opposition to Petition for Writ of Cer-

tiorari at 12. They further argue that this Court’s prece-

dent in the area of reproductive choice “acknowledge[s}

that decisions concerning one’s own body, one’s own med-

ical care, and one’s own future life course fall within that

realm.” Jd. (emphasis supplied). Yet, this Court has

routinely rejected such an expansive view of personal

autonomy, holding that there is no “unlimited right to

do with one’s body as one pleases.” Roe, 410 U.S. at 154

(emphasis supplied); see also Bowers, 478 US. at 191;

Slaton, 413 U.S. at 68.

A due process right to physician assisted suicide also

remains unsupported by this nation’s history and tradition.

“At common law suicide was a felony, punished by for-

feiture of property to the king and ignominious burial.

. . - Essentially, suicide was considered a form of murder.”

In re Joseph G., 34 Cal. 3d 429, 433, 194 Cal. Rptr. 163,

165 (1983) (citations omitted). In the United States,

most jurisdictions today regard suicide as “an expression

of mental illness” or depression.’ Jd. Further, at com-

7 Furman v. Georgia, 408 U.S. 238, 286 (1972) (Brennan, J.

concurring).

mental disorder at the time of death.” New York State Task

Force on Life and the Law, When Death is Sought: Assisted

mon law, a person who assisted another to commit suicide

was guilty of murder. In re Joseph G., 34 Cal. 3d

at 434, 194 Cal. Rptr. at 165. Perhaps most telling

is the fact that “[a]t the time the Fourteenth Amendment

was ratified, at least twenty-one of the thirty-seven existing

States (including eighteen of the thirty ratifying states)

proscribed assisted suicide either by statute or as a

common-law offense.” Kevorkian, 447 Mich. at 478, 527

N.W.2d at 731. Indeed, in Cruzan, Justice Scalia con-

cluded that “ ‘there is no significant support for the claim

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

it may be deemed ‘fundamental’ or ‘implicit in the con-

cept of ordered liberty.’’” Cruzan, 497 U.S. at 295

(Scalia, J., concurring) (citations omitted). Of course,

if there is no liberty interest to commit suicide, there can

be no liberty interest in receiving the assistane of another

to do so. Kevorkian, 447 Mich. at 468 n.35, 527 N.W.2d

at 726 n.35.

Respondents and the Ninth Circuit attempt to avoid

this historical consensus in two ways. First, they ques-

tion the continued vitality of this Court’s reasoning in

Palko v. Connecticut and Moore v. East Cleveland.

See, e.g., Glucksberg App. at 55 (suggesting that Palko’s

actual language results in too strict a test); Glucksberg

et al., Brief of Appellees in the Ninth Circuit at 27 n.29

(arguing that, instead of Palko’s ordered liberty test, the

Ninth Circuit should look to the “conscience of the

people”).

Instead of looking to Palko and Moore, respondents

extract certain language from this Court’s decision in

Casey to formulate a new general test for evaluating rights

under the Due Process Clause. In Casey, the Court

stated that “[t]hese matters, involving the most intimate

Suicide and Euthanasia in the Medical Context 11 (May 1994).

Further, “[ljike other suicidal individuals, patients who desire

suicide or an early death during a termina! illness are usually

suffering from a treatable mental illness, most commonly depres-

sion.” Jd. at 13.

and personal choices a person may make in a lifetime,

choices central to personal dignity and autonomy, are cen-

tral to the liberty protected by the Fourteenth Amend-

ment. At the heart of liberty is the right to define one’s

own concept of existence, of meaning, of the universe, and

of the mystery of human life.” Casey, 505 U.S. at 851.

On the basis of this language, respondents identify any

issue potentially important to personal dignity as a liberty

interest, and then inquire whether, under a balancing

test, that interest has been burdened by state action. See,

e.g., Glucksberg App. at 54-62.

Respondents’ approach reads far too much into a

single excerpt from the opinion in Casey and ignores the

context in which that statement was made. Casey did not

purport to engage in a fresh due process inquiry; indeed,

as the plurality opinion demonstrates, a woman’s right to

choose an abortion was explicitly retained based on the

settled expectations of stare decisis. Casey, 595 U.S. at

871. Casey, therefore, is an inappropriate tool to use as

a lever to expand the limits of this Court’s previously set-

tled due process jurisprudence. Moreover, this Court’s

abortion cases in general, and the Casey opinion in par-

ticular, should not be used to draw general conclusions

about the Due Process Clause outside the abortion con-

text. Instead, as the Court has observed, “[a]bortion is a

unique act. [In abortion,] . . . the liberty of the woman

is at stake in a sense unique to the human condition and

so unique to the law.” /d. at 852 (emphasis supplied).

The Ninth Circuit’s opinion below also attempts to

avoid the historical consensus on assisted suicide by

augmenting history. Although acknowledging society's

historic opposition to assisted suicide, the Ninth Circuit

refers to a supposedly “strong undercurrent of a time-

honored but hidden practice” of assisted suicide that runs

“beneath the official history of legal condemnation of

physician-assisted suicide.” Glucksberg App. at 51. This

approach, however, fundamentally misapplies the reason-

ing of Moore v. East Cleveland, by giving preference to

—_—

an esoteric historical account over innumerable public acts

rejecting the practice of assisted suicide.°

B. The State Has a Compelling Interest in Protecting,

and Indeed an Obligation to Protect, the Lives of

Its Citizens.

Even if this Court were to recognize some protected

interest in giving or receiving assistance in suicide, that

would not end the matter. The Court would need also

to consider a State’s compelling interest in protecting—

indeed, the State’s obligation to protect—the lives of its

citizens.

As John Locke wrote, the “great and chief end” of those

who “seek out and [are] willing to join in society” is

“the mutual preservation of their lives.” John Locke, Two

Treatises on Government 350 (Peter Laslett ed. 1988)

(emphasis supplied)."° For Locke, and for the Framers

of our Constitution, human beings come together in free

society, consent to be governed, and, in return, receive a

covenant from government that each citizen’s life will

be protected equally and unqualifiedly before the law.

Id. As this Court has held, that covenant applies broadly to:

all the powers of government, legislative as well

as executive and judicial. It necessarily happened,

therefore, that as these broad and general maxims of

liberty and justice held in our system a different place

and performed a different function from their position

and office in English constitutional history and law,

they would receive and justify a corresponding and

more comprehensive interpretation. Applied in Eng-

land only as guards against executive usurpation and

* Perhaps mindful of the implausibility of its own historical

account, the Ninth Circuit also refers to what it terms “drastic

changes” in the public’s recent attitudes toward physician assisted

suicide. Glucksberg App. at 77.

1 Locke was a staunch opponent of sui«e, regarding it as the

duty of each citizen “not to quit [one’s] station willfully.” John

Locke, Two Treatises on Government 271 (Peter Laslett ed. 1988).

tyranny, here they . . . must be held to guaranty not

particular forms of procedure, but the very substance

of individual rights to life, liberty, and property.

Hurtado v. California, 110 U.S. 516, 531 (1884).

Given the origins of government, and the nature of the

bargain between the State and its citizens, the State has

an obligation to protect life simply because of its existence,

apart from any other consideration. This obligation does

not vary with the circumstances of particular citizens but

applies to all persons under the State’s authority. As the

Ohio Supreme Court wrote not long after the adoption

of the Fourteenth Amendment:

The life of those to whom life has become a burden

—of those who are hopelessly diseased or fatally

wounded—nay, even the lives of criminals condemned

to death, are under the protection of the law, equally

as the lives of those who are in the full tide of life’s

enjoyment, and anxious to continue to live.

Blackburn v. State, 23 Ohio St. 146, 163 (1872); accord,

Cruzan, 497 U.S. at 295 (Scalia, J., concurring) ."

Both history and tradition support the State’s obligation

to protect life and the citizen's right to expect such pro-

tection. Ever since the founding of the Republic, we have

been a nation that “strongly affirms the sanctity of life.”

Furman v. Georgia, 408 U.S. 238, 286 (1972) (Brennan,

11 This principle runs throughout Catholic medical ethics as well.

Indeed, the Catholic Church has always taught that “[t)he inviol-

ability of human life means and implies in the last analysis the

illicitness of every act which directly suppresses human life. ‘The

inviolability of the right to life of the innocent human being from

conception to death is a sign and a requirement of the very inviol-

ability of the person, to whom the Creator has given the gift of

life’ ” Pontifical Council for Pastoral Assistance to Health Care

Workers, Charter for Health Care Workers {136 (Boston: Daugh-

ters of St. Paul 1995), quoting Sacred Congregation for the Doctrine

of the Faith, Instruction Donum Vitae, in 80 Actus Apostolicae

Sedes 75-76 (1988).

A eR ER a

Sus concurring). “As a general matter, the States—indeed,

all civilized nations—demonstrate their commitment to life

by treating homicide as a serious crime. Moreover, the

majority of States in this country have laws imposing

criminal penalties on one who assists another to commit

suicide.” Cruzan, 497 U.S. at 280. As the British House

of Lords recently concluded, this fundamental proposition

is shared by all common law countries and is expressed in:

society’s prohibition of intentional killing. That

prohibition is the cornerstone of law and of social

relationships. It protects each one of us im

partially,

embodying the belief that all {lives) are equal. ‘

Select Committee on Medical Ethics of the House of

Lords, Report of the Select Committee on Medical Ethics

48 (Jan. 1994) (emphasis supplied).

Physician assisted suicide always involves the taking of

human life, and, as such, permitting it would run counter

to the State’s fundamental obligation to protect its citizens.

To be sure, physician assisted suicide advocates, including

respondents, seek to limit the practice to certain narrowly

defined circumstances, such as where a person is both

terminally ill and mentally competent.” See, e.g., Glucks-

berg App. at 9-11. All such proposed limitations, how-

12 The House of Lords went on to apply this “cornerstone of law”

to physician assisted suicide and euthanasia. It concluded that

“(we do not wish that protection to be diminished and we there-

fore recommend that there should be no change in the law to permit

euthanasia.” Select Committee on Medical Ethics of the House of

— Report of the Select Committee on Medical Ethics 48 (Jan.

8 If this Court were to find a right to physician assisted suicide

it is by no means certain that such a right could be limited to the

terminally ill. At least one lower court has held that any such

limitation would violate the Equal Protection Clause. See generally

od . hp ny a Aw» 1429 (D. Or. 1995), appeal docketed,

. ‘ - , 95-35854, i

it oo 854, 95-35948, 95-35949 (9th Cir.

ever, necessarily rest on a judgment about quality of life.

Such judgments are foreign to this Court’s jurisprudence.

In Cruzan, this Court held that “a State may properly

decline to make judgments about the ‘quality’ of life that

a particular individual may enjoy, and simply assert an

unqualified interest in the preservation of human life . . . beg

Cruzan, 497 U.S. at 282. Indeed, the risk in making such

decisions about quality of life is great. As the Missouri

Supreme Court noted in Cruzan, “[w]ere quality of life

at issue, persons with all manner of handicaps might find

the state seeking to terminate their lives.” Cruzan v.

Harmon, 760 S.W.2d 408, 420 (Mo. 1988) (en banc),

aff'd sub nom. Cruzan vy. Director, Missouri Dep't of

Health, 497 U.S. 261 (1990). Not surprisingly, the dis-

abled count themselves among the strongest opponents of

physician assisted suicide, which they regard as “based on

erroneous judgments concerning the quality of life of a

person with a disability or on social judgments that such a

person’s continued existence will impose an ‘unacceptable’

burden on his or her family or on the Nation as a whole.

These judgments are often grounded in misinformation,

inaccurate stereotypes, and negative attitudes about people

with disabilities.” United States Commission on Civil

Rights, Medical Discrimination Against Children with

Disabilities 12 (1989).

This Court itself has previously declined to differentiate

among the due process rights of individuals based on their

quality of life. In United States v. Rutherford, terminal

cancer patients sued to overturn the FDA’s decision that

Laetrile was not “safe and effective” within the meaning

of the Food, Drug, and Cosmetic Act.” They sought, in

effect, to substitute their judgment for that of the medical

community about what might improve their quality of

life.

4 442 U.S. 544 (1979).

1 21 U.S.C. §§ 201, 355 (1996).

The terminally ill plaintiffs in Rutherford convinced a

lower court that they had a due process right to choose

even potentially unsafe and ineffective drugs because of

their diminished quality of life.* Plaintiffs argued that

the definition of safe and effective medical care had to be

modified because their lives, which were of presumably

limited duration, were entitled to a lesser degree of gov-

ernmental protection.” This Court refused to recognize

any dilution of due based on quality of life.

Rutherford, 442 US. at 555, 559. Although Rutherford

ultimately was resolved on statutory grounds, it illustrates

the caution with which courts should approach arguments

based on diminished quality of life. Id.

Even if the Court were inclined to recognize som

tected interest in suicide or assisted suicide, peadien,

it should also recognize a fundamental obligation on the

part of the State to protect the lives of its citizens. Allow-

ing physician assisted suicide is incompatible with that

obligation. As one medical organization recently ob-

served, physician assisted suicide involves:

the deliberate taking of human life {and| should

remain a crime. This [Association’s] rejection of a

change in the law to permit doctors to intervene to

end a person’s life is not just a subordination of

individual well-being to social policy. It is instead

an affirmation of the supreme value of the individual

no oy how worthless and hopeless that individual

may feel.

British Medical Association, Euthanasia: Report of the

Working Party to Review the British Medical Association's

Guidance on Euthanasia 69 (1988) .#

% Rutherford v. United States, 488 F. Supp

(W.D. Okla. 1977). den pdr gts

17 Rutherford, 442 U.S. at 551.

18 Confirming the existence of a fundamental

governmental obliga-

tion to protect the lives of its citizens would not require this Court

Il. STATES MAY PROHIBIT ASSISTED SUICIDE

CONSISTENT WITH THE EQUAL PROTECTION

CLAUSE BECAUSE, UNLIKE FORGOING MEDI-

CAL TREATMENT, ASSISTED SUICIDE ALWAYS

INVOLVES AN INTENT TO KILL.

Although the Equal Protection Clause requires that “all

persons similarly circumstanced should be treated alike,

._. . [t]he Constitution does not require things which are

different in fact or opinion to be treated in law as though

they were the same.” Plyler v. Doe, 457 U.S. 202, 216

(1982) (internal quotations and citations omitted). In-

stead, disparate treatment normally will pass equal protec-

tion scrutiny if the statutory classification is “rationally

related to a legitimate state interest.” City of Cleburne v.

Cleburne Living Ctr., 473 U.S. 432, 440 (1985).

The Second Circuit invalidated New York’s prohibi-

tion against physician assisted suicide, reasoning that a

state may not allow a terminally ill patient to hasten his

or her death by forgoing life support and, at the same

time, prevent a physician from dispensing lethal drugs to

a terminally ill patient who wishes to use them to commit

suicide. Vacco App. at 29a-30a. The Second Circuit based

its holding on the premise that forgoing medical treatment

and assisted suicide are indistinguishable. Vacco App.

at 30a-3la. The Second Circuit failed to recognize, how-

to reexamine any of its prior decisions. A person can forfeit either

liberty or life through wrongdoing or malfeasance. That fact does

not diminish the importance of those rights any more than the fact

that there are inmates in our prisons calls into question the in-

alienability >f the rights Jefferson declared.

Nor is there any inconsistency with this Court’s decisions in

Casey and earlier cases dealing with abortion. This Court has held

that abortion does not extinguish the life of a “person” for pur-

poses of the Fourteenth Amendment. Roe, 410 U.S. at 153 (“The

word ‘person,’ as used in the Fourteenth Amendment, does not

include the unborn”). Even so, it is well-settled that the States

at least have “legitimate interests from the outset of the pregnancy

in protecting . . . the life of the fetus that may become a child.”

Casey, 505 U.S. at 846.

ever, that physician assisted suicide always involves an

intent to terminate a life, while forgoing medical treatment

— RN hag oo legitimate state

terests supporting New York's ibition o ici

assisted suicide. sey a

The moral, civil, and common law has always regarded

the refusal or withdrawal of medical cians on funda-

mentally different from suicide.” There is, moreover,

an obvious common-sense basis for this distinction. Ac-

cording to the American Bar Association, decisions to

refuse treatment are “legally and ethically distinct” from

decisions to administer “a lethal agent with the intentional

purpose of terminating life.” American Bar Association,

Commission on Legal Problems of the Elderly, Memo-

randum of Jan. 17, 1992, reprinted in 8 Issues L. & Med.

117, 118 (1992). Assisted suicide “involves not letting

the patient die, but making the patient die . . . .” Stephen

L. Carter, The Culture of Disbelief: How American Law

and Politics Trivialize Religious Devotion 236 (1993).

The difference between forgoing medical treatment and

assisted suicide centers on the mens rea necessarily in-

volved. According to one commentator:

The definition of suicide requires that one’s actions

be carried out for the purpose of bringing about death

either as an end or as a means. The soldier who

throws himself on the live grenade to save his com-

panions, for example, is not aiming at death. That

is, he does not intentionally jump on the grenade for

the purpose of bringing about his death, but rather

for the purpose of saving his companions. This is

clear if one considers that, if he lives and his com-

panions are saved, then he would have achieved his

purpose without dying. For this reason, his act is

1 See Yale Kamisar, Against Assisted Suicide—Even a Very

Limited Form, 72 U. Det. Mercy L. Rev. 735, 753-60 (1995) : Thomas

J. Marzen et al., Suicide: A Constitutional Right? 24 Dug. L. Rev.

1, 9-18 (1985).

the proceeds from his life insurance. Clearly, he

intentionally carries out his actions for the purpose

of bringing about death. He is aiming at his death,

albeit as a means to another end: if he lives, he

would have failed in his purpose since, without his

death, no inheritance will be forthcoming.

Manual G. Velasquez, Defining Suicide, 3 Issues L. &

Med. 37, 49 (1987) (emphasis supplied). Assisted

suicide, therefore, necessarily involves an intent to kill.

Patients, on the other hand, can forgo medical treatment

without such an intent. Indeed, they may act:

in order to safeguard themselves at the point of death

against “the use of techniques that run the risk of

becoming abusive.” Contemporary Medicine in fact,

has at its disposal methods which artificially delay

death, without any real benefit to the patient. It is

merely keeping one alive or prolonging life for a

time, at the cost of further, severe suffering. This is

so-called “therapeutic obstinacy,” which consists “of

the use of methods which are particularly exhausting

and painful for patients, condemning them, in fact,

to an artificially prolonged agony.”

Pontifical Council for Pastoral Assistance to Health Care

Workers, Charter for Health Care Workers € 119 (Boston:

Daughters of St. Paul 1995), quoting Pope John Paul Il,

Address to the Participants at the International Congress

on Assistance to the Dying, in OssRom, Mar. 18, 1992.

at 65 n.4:; and Sacred Congregation for the Doctrine of

the Faith, Declaration on Euthanasia 549 (Boston: Daugh-

ters of St. Paul 1980). In such circumstances:

For doctors and their assistants it is not a question

of deciding the life or death of an individual. It is

simply a question of being a doctor, that is of posing

the question and then deciding according to one’s

expertise and one’s conscience regarding a respectful

care of the living and the dying of the patient en-

pep ade my moto inherent in life. It

might mean respect for wishes of the patient

who refuses the use of such means. ee

Pontifical Council for Pastoral Assistance to Health Care

Workers, Charter for Health Care Workers 4 121 (Boston:

Daughters of St. Paul 1995). Properly understood, for-

going treatment occurs with neither the patient nor the

physician desiring that death occur. Neither intends to

cause or hasten it. Instead, the inquiry focuses on whether

the medical treatment in question is effective, overly bur-

densome, and requires heroic virtue to endure. If so, the

patient may choose to forgo the treatment as an end in

itself. Jd. The fact that death may resr‘t is merely a fore-

seen but unintended side effect. /d.

Medical science can offer numerous exam in which

A go — iy oe al treatment does ny involve an

inten or to die. For example, a feeding tube can

cant pain, it can result in serious infection, and it can fail

to transmit nourishment effectively. Under such circum-

stances, the patient might well choose to forgo the feeding

tube as disproportionately burdensome. The patient could

make such a choice, however, while at the same time

hoping that he or she could be effectively fed intra-

venously and praying that the underlying pathology would

abate. The fact that intravenous feeding may turn out

ultimately to be ineffective and that the patient ultimately

may die as a result does not change the analysis.

. The Second and Ninth Circuits, in rejecting any dis-

tinction between assisted suicide and forgoing medical

treatment, seem to confuse purpose or intent with knowl-

edge. Vacco App. at 30a-31a; Glucksberg A -

As the Ninth Circuit held: ere

ittle, if any, difference for constitutional

pe tse. providing medication with a

double effect and providing metication wih 2 dag

effect, as long as one of the known effects im cacl

case is to hasten the end of the patient's life. ‘Simi-

larly, we see no ethical or constitutionally cognizable

difference between a doctor’s pulling the plug on a

respirator and his prescribing drugs which will per-

mit a terminally ill patient to end his own life. In

fact, some might argue that pulling the plug is a more

culpable and aggressive act on the doctor’s part and

provides more reason for criminal prosecution. To

us, what matters most is that the death of the patient

is the intended result as surely in one case as in the

other.

Glucksberg App. at 82 (emphasis supplied ).

sant neh and knowledge. In United States v.

Bailey,” for example, the Court recognized that “[flew

areas of criminal law pose more difficulty than the proper

definition of the mens rea required for any particular

crime.” Bailey established a “hierarchy of culpable

states of mind” and distinguished among “purpose, knowl-

edge, recklessness, and negligence.” * In doing so, it

explained that “[pjerhaps the most significant and most

esoteric, distinction drawn by this analysis is that between

the mental states of ‘purpose’ and ‘knowledge. The

distinction becomes particularly important:

ijn certain narrow classes of crimes [where] . . .

ae culpability has been thought to merit

law of homicide often distinguishes, either in setting

2% 444 U.S. 394 (1980).

21 Jd. at 408.

22 Id. at 404.

23 Id.

the “degree” of the crime or in imposing punishment,

between a person who knows that another person will

be killed as the result of his conduct and a person

a with the specific purpose of taking another's

life.

As a definitional matter, this Court held that:

[A] person who causes a particular result is said to act

purposely if “he consciously desires that result, what-

ever the likelihood of that result happening from his

conduct,” while he is said to act knowingly if he is

aware “that the result is practically certain to follow

from his conduct, whatever his desire may be as to

that result.” *

This Court’s recognition of the distinction between pur-

pose, on the one hand, and a foreseen but unintended side

effect, on the other, is perhaps most clearly set out in

Personnel Adm'r of Mass. v. Feeney.” There, the Court

relied on the distinction (sometimes referred to as the

“principle of double effect”) in addressing a claim that

Massachusetts had discriminated impermissibly on the

basis of gender by giving hiring preferences to military

veterans, most of whom were men. Feeney, 442 U.S. at

259. The Court observed:

The appellee’s ultimate argument rests upon the pre-

sumption, common to the criminal and civil law,

that a person intends the natural and foreseeable con-

sequences of his voluntary actions. . . . [Culpable]

purpose, however, implies more than intent as voli-

tion or intent as awareness of consequences. It im-

plies that the decisionmaker, in this case a state

legislature, selected or reaffirmed a particular course

of action at least in part “because of,” not merely

“in spite of,” its adverse effects... .

Id. at 278-79.

24 Id. at 406.

*5 Id. at 404 (citation omitted).

2* 442 U.S. 256 (1979).

Respondents may argue that, apart from any distinction

between assisted suicide and forgoing medical treatment,

many people actually forgo medical treatment with the

intent of hastening death. That, unfortunately, may be

so, but it does not lessen in any way the validity of the

distinction for those who forgo treatment without an in-

tent to kill. Nor does it disable the State from relying

on the distinction in determining which conduct should be

proscribed.

The fact that statutes in all fifty states distinguish be-

tween forgoing certain medical treatment and physician

assisted suicide confirms both the reasonableness and the

widespread nature of the distinction. Appendix B lists the

numerous state living will statutes that expressly permit

forgoing life support but at the same time reject physician

assisted suicide. Appendix A lists the many state court

decisions that adopt the same distinction. Appendix C

lists the state statutes and judicial decisions that criminal-

ize assisting a suicide but say nothing about forgoing

medical treatment. All of this authority supports the

proposition that a person’s intent is central in determining

the proper legal characterization of acts or omissions. As

Justice Scalia wrote in Cruzan:

Starving oneself to death is no different from put-

ting a gun to one’s own temple as far as the common

law definition of suicide is concerned [because both

involve] “the suicide’s conscious decision to [put]

an end to his own existence.”

Cruzan, 497 US. at 296-97 (Scalia, J., concurring)

(emphasis supplied and citations omitted).

Respondents also may argue that physicians at times

cause death by employing measures deliberately chosen

for the treatment of pain. Indeed, both the Second and

Ninth Circuit explicitly mention such allegations in their

opinions below. Vacco App. at 30a-31a; Glucksberg App.

at 79. Once again, the physician’s purpose, the result the

physician intends to produce, provides a principled basis

on which to distinguish between assisted suicide and pallia-

tive care. As one medical text observes:

Human and Christian prudence suggests the use for

most patients of medicines which alleviate or sup-

press pain, even if this causes torpor or reduced

lucidity... . When “proportionate means” so require,

“it is permitted to use with moderation narcotics

which alleviate suffering, but which also hasten

death.” In this case, “death is not intended or sought

in any way, although there is a risk of it for a reason-

able cause: what is intended is simply the alleviation

of pain in an effective way, using for that purpose

those painkillers available to medicine.”

Pontifical Council for Pastoral Assistance to Health Care

Workers, Charter for Health Care Workers 94 122-23

(Boston: Daughters of St. Paul 1995), quoting Sacred

Congregation for the Doctrine of the Faith, Declaration

on Euthanasia 548 (Boston: Daughters of St. Paul 1980).

Further, the opinions below vastly underrate both medical

science’s capacity to treat pain effectively and its ability

to avoid any unintended lethal side effects of palliative

care. See, e.g., Michael H. Levy, Drug Therapy: Pharma-

cologic Treatment of Cancer Pain, 335 New Eng. J. Med.

1124, 1124-32 (1996) (noting that the appropriate use

of pain medications, particularly in combination, “rarely re-

sults in respiratory depression or cardiovascular collapse” ).

In order for the New York and Washington State stat-

utory schemes to survive equal protection scrutiny, they

need only a rational basis. Cleburne Living Ctr., 473

U.S. at 440. The fact that a statute may have other

effects or be unwise as a matter of public policy will not

suffice. Jd. Only if such legislation is irrational will the

Court invalidate it. Kadrmas v. Dickinson Pub. Sch.,

487 U.S. 450, 462 (1988) (“Social and economic legis-

lation . . . carries with it a presumption of rationality

that can only be overcome by a clear showing of arbitrari-

ness and irrationality.”). Indeed, in discussing such ra-

tional basis scrutiny, this Court has stated that:

the Fourteenth Amendment permits the States a

wide scope of discretion in enacting laws which affect

some groups of citizens differently than others. The

constitutional safeguard is offended only if the classifi-

cation rests on grounds wholly irrelevant to the

achievement of the State’s objective. State legisla-

tures are presumed to have acted within their con-

stitutional power despite the fact that, in practice,

their laws result in some inequality. A statutory

discrimination will not be set aside if any state of

facts reasonably may be conceived to justify it.

McGowan v. Maryland, 366 U.S. 420, 425-26 (1961).

Given the intent-based distinction between assisted suicide

and forgoing medical treatment, the New York and Wash-

ington State statutory schemes more than satisfy the con-

stitutional requirement of rationality and non-arbitrariness.

CONCLUSION

The judgments of the courts of appeals should be

reversed.

Respectfully submitted,

JOSEPH J. FRANK

SERGIO ALVAREZ-MENA, III

PETER BUSCEMI *

MorGAN, LEwis & Bockius LLP

1800 M Street, N.W.

Washington, D.C. 20036

(202) 467-7190

November 12, 1996 * Counsel of Record

APPENDICES

APPENDIX A

The state courts of last resort that have distinguished

between forgoing life support and assisted suicide include:

Rasmussen v. Fleming, 154 Ariz. 207, 218, 741 P.2d

674, 685 (1987)

Thor v. Superior Court, 5 Cal. 4th 725, 742, 855

P.2d 375, 385, 21 Cal. Rptr. 2d 357, 367 (1993)

McConnell v. Beverly Enters., 209 Conn. 692, 710,

553 A.2d 596, 605 (1989)

In re Browning, 568 So. 2d 4, 14 (Fla. 1990)

State v. McAfee, 259 Ga. 579, 580, 385 S.E.2d 651,

652 (1989)

In re Estate of Longeway, 133 Ill. 2d 33, 41, 549

N.E.2d 292, 296 (1989)

In re Lawrance, 579 N.E.2d 32, 40 n.4 (Ind. 1991)

DeGrella ex rel. Parrent v. Elston, 858 S.W.2d 698,

707 (Ky. 1993)

In re P.V.W., 424 So. 2d 1015, 1022 (La. 1982)

In re Gardner, 534 A.2d 947, 955-56 (Me. 1987)

In re Doe, 411 Mass. 512, 522, 583 N.E.2d 1263,

1270, cert. denied, 503 U.S. 950 (1992)

Brophy v. New England Sinai Hosp., 398 Mass. 417,

439, 497 N.E.2d 626, 638 (1986).

Superintendent of Belchertown v. Saikewicz, 373

Mass. 728, 744 n.11, 370 N.E.2d 417, 426 n.11

(1961)

People v. Kevorkian, 447 Mich. 436, 472-73, 527

N.W.2d 714, 728-29 (1994), cert. denied, 115

S. Ct. 1795 (1995)

McKay v. Bergstedt, 106 Nev. 808, 823, 801 P.2d

617, 627 (1990)

In re Farrell, 108 N.J. 335, 350, 529 A.2d 404, 411

(1987)

In re Conroy, 98 N.J. 321, 350-51, 486 A.2d 1209,

1224 (1985)

In re Quinlan, 70 N.J. 10, 51-52 & n.9, 355 A.2d

647, 669-70 & n.9, cert. denied, 429 U.S. 922

(1976)

Fosmire v. Nicoleau, 75 N.Y.2d 218, 227 n.2, 551

N.E.2d 77, 82 n.2, 551 N.Y.S.2d 876, 881 n.2

(1990)

In re Storar, 52 N.Y.2d 363, 377, 420 N.E.2d 64,

71, 438 N.Y.S.2d 266, 273, cert. denied, 454 U.S.

358 (1981)

In re Fiori, 673 A.2d 905, 910 (Pa. 1996)

In re Grant, 109 Wash. 2d 545, 563-64, 747 P.2d

445, 454-55 (1987), modified on other grounds,

757 P.2d 534 (Wash. 1988)

In re L.W., 167 Wis. 2d 53, 83, 482 N.W.2d 60, 71

(1992)

In re Eichner, 102 Misc. 2d 184, 205, 423 N.Y‘S.

580, 594 (Sup. Ct. 1979), aff'd as modified me

nom. Eichner v. Dillon, 73 A.D.2d 43 1, 426 N.Y.S.

2d 517 (App. Div. 1980), aff'd as modified sub

nom. In re Storar, 52 N.Y.S.2d 363, 420 N.E.2d

‘a Meng N.Y.S.2d 266, cert. denied, 454 U.S. 858

Leach v. Akron Gen. Med. Ctr., 68 Ohio Mi

10, 426 N.E.2d 809, 815 (Ct. CP. 1980). x

In re Fiori, 438 Pa. Super. 610, 619, 652 A.2d 1350,

1354 (1995) (en banc), aff'd. 673

(Pa. 1996) Pe (Ne

A number of state lower courts have also distinguished

between forgoing life support and assisted suicide, in-

cluding:

Donaldson v. Lundgren, 2 Cal. App. 4th 1614, 1621,

4 Cal. Rptr. 2d 59, 62 (1992)

People v. Adams, 216 Cal. App. 3d 1431, 1440,

265 Cal. Rtpr. 568, 573-74 (1990)

Bouvia v. Superior Court, 179 Cal. App. 3d 1127,

1144-45, 225 Cal. Rptr. 297, 306 (1986)

Bartling v. Superior Court, 163 Cal. App. 3d 186,

196, 209 Cal. Rptr. 220, 225 (1984)

Barber v. Superior Court, 147 Cal. App. 3d 1006,

1012, 195 Cal. Rptr. 484, 487 (1983)

Foody v. Manchester Mem. Hosp., 40 Conn. Supp.

127, 137, 482 A.2d 713, 720 (Super. Ct. 1984)

In re Severns, 425 A.2d 156, 158 (Del. Ch. 1980)

Satz v. Perlmutter, 362 So. 2d 160, 162 (Fla. Dist.

Ct. App. 1978), aff'd, 379 So. 2d 359 (Fla. 1980)

In re Rosebush, 195 Mich. App. 675, 681 n.2, 491

N.W.2d 633, 636 n.2 (1992)

Von Holden v. Chapman, 87 A.D.2d 66, 70, 450

N.Y.S.2d 623, 627 (App. Div. 1982)

APPENDIX B

The state living will statutes that distinguish between

forgoing life support and assisted suicide include the

following:

Ala. Code § 22-8A-10 (1995)

Alaska Stat. § 18.12.080(f) (1995)

Ariz. Rev. Stat. Ann. § 36-3210 (1995)

Ark. Code Ann. § 20-17-210(g) (Michie 1995)

Cal. Health & Safety Code § 7191.5(g) (West 1995)

Colo. Rev. Stat. Ann. § 15-18-112(1) (West 1995)

Conn. Gen. Stat. Ann. § 19a-575 (West 1995)

Del. Code Ann. tit. 16, § 2507 (1995)

D.C. Code Ann. § 6-2430 (1995)

D.C. Code Ann. § 21-2212 (1995) (durable power

of attorney for health care)

Fla. Stat. Ann. § 765.309(1) (West 1995)

Ga. Code Ann. § 31-32-9 (1995)

Ga. Code Ann. § 31-36-2 (1995) (durable power of

attorney for health care)

Haw. Rev. Stat. § 327D-13 (1995)

Idaho Code § 39-161(1) (1995) (do not resuscitate

orders )

Ill. Comp. Stat. ch. 755, para. 35/9(f) (Smith-Hurd

1995)

Ill. Comp. Stat. ch. 755, para. 40/50 (Smith-Hurd

1995) (durable power of attorney for health care)

Ind. Code Ann. § 16-36-1-13 (West 1995) (durable

power of attorney for health care)

Ind. Code Ann. § 16-36-4-19 (West 1995)

Iowa Code Ann. § 144A.11.6 (West 1995)

Iowa Code Ann. § 144B.12.2 (West 1995) (durable

power of attorney for health care)

Kan. Stat. Ann. § 65-28,109 (1995)

Ky. Rev. Stat. Ann. § 311.637 (Baldwin 1995)

La. Rev. Stat. Ann. § 1299.58.10 (West 1995)

Me. Rev. Stat. Ann. tit. 18-A, § 5-813 (West 1995)

Md. Code Ann., Health-Gen. § 5-611 (1995)

Mass. Gen. Laws Ann. ch. 201D, § 12 (West 1995)

(durable power of attorney for health care)

Mich. Comp. Laws Ann. § 700.496(20) (West 1995)

(durable power of attorney for health care)

nn. Stat. Ann. § 145B.14 (West 1995)

Ann. § 41-41-117(2) (1993)

. Stat. § 459.055(5) (Vernon 1995)

Ann. § 50-9-205(7) (1995)

Stat. § 20-412(7) (1995)

. Stat. § 449.670(2) (1993)

‘ . Stat. Ann. § 137-H:10(11) (1995)

J. Ann. § 26:2H-54(e) (West 1995)

.M. Stat. Ann. § 24-7-8 (Michie 1996)

N.Y. Pub. Health Law § 2989(3) (McKinney 1995)

(durable power of attorney for health care)

N.C. Gen. Stat. § 90-320(b) (1995)

N.D. Cent. Code § 23-06.4-01 (1995)

N.D. Cent. Code § 23-06.5-01 (1995) (durable

power of attorney for health care )

Ohio Rev. Code Ann. § 2133.12(d) (Baldwin 1996)

Okla. Stat. Ann. tit. 63, § 3101.12(g¢) (West 1995)

Or. Rev. Stat. § 127.570 (1995)

20 Pa. Cons. Stat. Ann. § 5402(b) (1995)

R.I. Gen. Laws § 23-4.10-9(f) (1995) (durable

power of attorney for health care)

R.I. Gen. Laws § 23-4.11-10(f) (1995)

S.C. Code Ann. § 44-77-130 (Law. Co-op. 1993)

S.D. Codified Laws Ann. § 34-12D-20 (1996)

Tenn. Code Ann. § 32-11-110 (1995)

ar — re & Safety Code Ann. § 672.020 (West

Utah Code Ann. § 75-2-1118 (1995)

Vt. Stat. Ann. tit. 18, § 5260 (1995)

Va. Code Ann. § 54.1-2990 (Michie 1995)

Wash. Rev. Code Ann. § 70.122.100 (West 1995)

. Va. § 16-30-10 (1995)

= ¥ “3 oa sta (West 1995)

yo. Stat. § 3- (1995) (durable power of at-

torney for health care ) “

Wyo. Stat. § 35-22-109 (1995)

S55

BEEF

ZZZ

APPENDIX C

This appendix lists the forty-five states that criminalize

assisted suicide, either by statute or judicial decision.

The following thirty-seven states and territories have

statutes that explicitly impose criminal penalties for as-

sisting a suicide:

Alaska Stat. § 11.41.120(a)(2) (1995)

Ariz. Rev. Stat. Ann. § 13-1103(A)(3) (1995)

Ark. Code Ann. § 5-10-104(a)(2) (Michie 1995)

Cal. Penal Code § 401 (West 1995)

Colo. Rev. Stat. § 18-3-104(1)(b) (West 1995)

Conn. Gen. Stat. Ann. § 53a-56(a)(2) (West 1995)

Del. Code Ann. tit. 11, § 645 (1995)

Fla. Stat. Ann. § 782.08 (West 1995)

Ga. Code Ann. § 16-5-5(b) (1995)

Haw. Rev. Stat. § 707-702 (1995)

Ill. Comp. Stat. ch. 720, para. 5/12-31 (Smith-Hurd

1995)

Ind. Code Ann. § 35-42-1-2.5(b) (West 1995)

lowa Code Ann. §§ 707A.2, 707A.3 (West 1996)

Kan. Stat. Ann. § 21-3406 (1995)

Ky. Rev. Stat. Ann. § 216.302 (Baldwin 1995)

La. Rev. Stat. Ann. § 14:32.12 (West 1995)

Me. Rev. Stat. Ann. tit. 17-A, § 204 (West 1995)

Minn. Stat. Ann. § 609.215 (West 1995)

Miss. Code Ann. § 97-3-49 (1993)

Mo. Ann. Stat. § 565.023(1)(2) (Vernon 1995)

Mont. Code Ann. § 45-5-105 (1993)

Neb. Rev. Stat. § 28-307 (1995)

N.H. Rev. Stat. Ann. § 630:4 (1995)

N.J. Stat. Ann. § 2C:11-6 (West 1995)

N.M. Stat. § 30-2-4 (Michie 1995)

w § 120.30 (McKinney 1995)

§ 125.15 (McKinney 1995)

D. § 12.1-16-04 (1995)

Okla. Stat. Ann. tit. 21, § 813 (West 1995)

Or. Rev. Stat. § 163.125(b) (1995)

18 Pa. Cons. Stat. Ann. § 2505 (1995)

P.R. Laws Ann. tit. 33, § 4009 (1990)

S.D. Codified Laws Ann. § 22-16-37 (1996)

Tenn. Code Ann. § 39-13-216 (1995)

Tex. Penal Code Ann. § 22.08 (West 1995)

V.I. Code Ann. tit. 14, § 2141 (1994)

Wash. Rev. Code Ann. § 9A.36.060 (West 1995)

Wis. Stat. Ann. § 940.12 (West 1995)

The following six states have case law authorizing the

imposition of criminal penalties for assisting a suicide:

McMahan v. State, 168 Ala. 70, 73, 53 So. 89, 91 (1910);

Commonwealth v. Mink, 123 Mass. 422, 428-29 ( 1877);

Commonwealth v. Bowen, 13 Mass. 356, 358 (1816);

People v. Kevorkian, 447 Mich. 436, 493-97, 527 N.W.

2d 714, 738-39 (1994), cert. denied, 115 S. Ct. 1795

(1995); State v. Willis, 255 N.C. 473, 477, 121 S.E.2d

854, 856-57 (1961); Blackburn v. State, 23 Ohio St. 146,

163 (1872); and State v. Jones, 86 S.C. 17, 22, 47, 67

S.E. 160, 162, 165 (1910).

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.