Amicus Curiae Brief — Washington v. Glucksberg

Supreme Court brief1997

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No. 96-110

In THE

Supreme Court of the United

OCTOBER TERM, 1996

STATE OF WASHINGTON, CHRISTINE O. GREGOIRE,

Attorney General of Washington,

. Petitioners,

HAROLD GLUCKSBERG, M.D..,

/\BIGAIL HALPERIN, M.D., THOMAS A. PRESTON, M.D.,

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

Respondents.

On Writ of Certiorari to the

United States Court of Appeals

for the Ninth Circuit

BRIEF OF THE AMERICAN MEDICAL ASSOCIATION,

THE AMERICAN NURSES ASSOCIATION, AND THE

AMERICAN PSYCHIATRIC ASSOCIATION, ET AL.

AS AMICI CURIAE IN SUPPORT OF PETITIONERS

KIRK B. JOHNSON CARTER G. PHILLIPS

MICHAEL L. ILE MARK E. HAppap *

BRUCE D. BLEHART PAUL E. KALB

AMERICAN MEDICAL KATHERINE L. ADAMS

ASSOCIATION CHRISTOPHER D. MOORE

515 North State Street SIDLEY & AUSTIN

Chicago, IL 60610 1722 Eye Street, N.W.

(312) 464-5000 Washington, D.C. 20006

(202) 736-8000

NEWTON N. MINOW

JACK R. BIERIG

SIDLEY & AUSTIN

One First National Plaza

Chicago, IL 60603

(312) 853-7000

Attorneys for Amici Curiae

November 12, 1996 * Counsel of Record

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

TABLE OF CONTENTS

INTRODUCTION AND INTEREST OF AMICI...

HEALTH CARE BACKGROUND ....... ree inl aly mantle

A. Commitment To Patient Autonomy...

Physician-Assisted Suicide 0... smaiaicaniae

The Inherent Difficulty In Regulating Physician-

BAIL a Al RS Hat SLE Speen

I eeterntnitmtemiceteestetice et )

THIS COURT’S DUE PROCESS JURISPRU-

DENCE DOES NOT PROVIDE A BASIS FOR

FINDING A CONSTITUTIONAL LIBERTY IN-

TEREST IN OBTAINING A PHYSICIAN’S AS-

SISTANCE TO COMMIT SUICIDE...

The Individual’s Fourteenth Amendment Liberty

Interest In Refusing Medical Treatment Does

Not Encompass The Right To Physician Assist-

ance In Committing Suicide... Font Pe

Physician-Assisted Suicide Lies Outside The

Continuum Of Liberty Interests That This Court

Has Previously Recognized As Constitutionally

RE ee ee

. States Have Strong Interests In Prohibiting

Physicians And Nurses From Assisting In

REE Ore eR ee Cee Cee

A Al AS EE A Ee LS

TABLE OF AUTHORITIES

CASES Page

Bowen Vv. American Hosp. Ass'n, 476 U.S. 610

(1986) .. at 28

Breithaupt v. Abram, 352 U.S. 482 (1957) ........... ” 21

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

U.S. 261 (1990) -. bi ...passim

Employment Div. v. Smith, 494 U.S. 872 (1990)... 21

Griswold v. Connecticut, 381 U.S. 479 (1965)........ 24

Jacobson Vv. Massachusetts, 197 U.S. 11 (1905)... 21

Loving Vv. Virginia, 388 U.S. 1 (1967) ......0000000000.. 24

Moore v. City of East Cleveland, 481 U.S. 494

ae 22

New State Ice Co. v. Liebmann, 285 U.S. 262

| ES ia an

New York State Ophthalmological Soc’y v. Bowen,

854 F.2d 1379 (D.C. Cir. 1988), cert. denied,

ok BS ae ee a

Ohralik v. Ohio State Bar Ass’n, 486 U.S. 447

CISD cccccscersnsennsemnnicniapiaiiaaiiiees

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

Palko v. Connecticut, 302 U.S. 319 (1987) ............... 22,

Planned Parenthood vy. Casey, 505 U.S. 8833

CEEIBED cncesswenenmeennatinsiiitinninitedaale 22, 23

Poe v. Ullman, 367 U.S. 497 (1961) 000000.

Roe v. Wade, 410 U.S. 118 (1978) 20.

Romer v. Evans, 116 S. Ct. 1620 (1996) 0000000.

Schloendorff v. Society of New York Hosp., 105

N.E. 92 (N.Y. 1914) ......... sciclilasiiliiadanldaa

Schmerber v. California, 384 U.S. 757 (1966) ........

Semler v. Oregon State Bd. of Dental Examiners

294 U.S. 608 (1935) ond

Shapero v. Kentucky Bar Ass’n, 486 U.S 466

(1988) ......... imainemaiaaes

United States v. Rutherford, 442 U.S. 54« (1979).

Washington Vv. Harper, 494 U.S. 210 “990} .....

Winters v. Miller, 446 F.2d 65 d Cir.), cert.

denied, 404 U.S. 985 (197)) —............ aha

Fe SERY

—

OTHER AUTHORITIES

AMA Bd. of Trustees. Huthanasia/Physician-

Assisted Suicide: Leeons in the Dutch Experi-

ence, 10 Issues in lL. & Med. 81 (1994)... «1, 12

iii

TABLE OF AUTHORITIES—Continued

AMA Council on Ethical and Judicial Affairs,

Physician-Assisted Suicide, 10 Issues in L. &

Med. 91 (1994)... a 5

ment of Acute Pain and Cancer Pain, 274 JAMA

ITS a FR eiahieedlitin 15

ES a ee oo a haliendliis 7,8

4 Blackstone, Commentaries on the Laws of Eng-

Blendon et al., Should Physicians Aid Their Pa-

tients in Dying?, 267 JAMA 2658 (1992) ... 14

ed., forthcoming May 1997) 15

Assisted Suicide: Creating a Regulatory

Potemkin Village, 30 U. Rich. L. Rev. 1 (1996). 11, 12,

Chochinov et al., Desire for Death in the Termi-

nally Ill, 152 Am. J. Psych. 1185 I i)

TABLE OF AUTHORITIES—Continued

Page

Connors et al., A Controlled Trial to Improve Care

for Seriously Ill Hospitalized Patients, 274

a 7

Conwell & Caine, Rational Suicide and the Right to

Die: Reality and Myth, 325 New Eng. J. Med.

1100 (1991) 9, 10

“Countdown to a Suicide,” The New York Times,

SE OEE ee ee 15

Cundiff, Euthanasia Is Not the Answer (1992)... 9

Emanuel, “Advance Directives,” in Principles and

Practice of Supportive Oncology —— (Berger,

et al. eds., forthcoming 1996) wanttedinitnsiiitatian 15

Emanuel, Cost Savings at the End of Life: What

Do the Data Show?, 275 JAMA 1907 (1996). 14

Emanuel et al., Euthanasia and Physician-Assisted

Suicide: Attitudes and Experiences of Oncology

Patients, Oncologists, and the Public, 347 Lancet

SD GED cieresnntepitittintiliieynitceniattiiiceisis tala tii ti 7, 8,9

Foley, The Relationship of Pain and Symptom

Management to Patient Requests for Physician-

Assisted Suicide, 6 J. Pain & Symp. Mgmt. 289

ey ES ad 6, 8,14

Hospitalized Elderly, 263 JAMA 1097 (1990) _. 13

Hendin, Seduced by Death: Doctors, Patients, and

the Dutch Cure, 10 Issues in L. & Med. 128

> ctnciienseniapnapaincoemmbenmmemaninbiateataiaietaceniitinns 13, 16

Hendin, Selling Death and Dignity, 25 Hast. Ctr.

—< [ae ar a 16

Hendin, Suicide and the Request for Swicide:

Meaning and Motivation, 35 Duq. L. Rev. 285

Se es. a ee - 9

Hendin, Suicide, Assisted Suicide, and Euthanasia:

Lessons from the Dutch Experience, Summary

of Testimony Presented to House Subcommittee

on the Constitution (1996) 0... 8

Kamisar, Against Assisted Suicide -—Even a Very

Limited Form, 72 U. Det. Merey L. Rev. 735

SD cthinncntntininennnniliatiticmiaiitielp tllinsidaaitid mannan bi ati kk 12, 25

TABLE OF AUTHORITIES—Continued

Page

Kass & Lund, Physician-Assisted Suicide, Medical

Ethics and the Future of the Medical Profession,

35 Dug. L. Rev. 395 (1996) 11, 16, 17, 30

Keeton et al., Prosser and Keeton on the Law of

Torts (5th ed. 1984) . ‘ ~ 19

Keown, “Some Reflections on Euthanasia in the

Netherlands,” in Euthanasia, Clinical Practice

and the Law 193 (Gormally ed. 1994) 13

Koenig et al., Attitudes of Elderly Patients and

Their Families toward Physician-Assisted Sui-

cide, 156 Arch. Int. Med. 2240 (1996)... 15

Levy, Pharmacologic Treatment of Cancer Pain,

335 New Eng. J. Med. 1124 (1996) si 6

Lynn et al., Defining the “Terminally Ill”: Insights

from SUPPORT, 35 Dug. L. Rev. 311 (1996). 12

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

J) SS 4). ee 22

2 Meisel, The Right to Die (2d ed. 1995) 22, 29

Miles, Physicians and Their Patients’ Suicides, 271

JAMA 1786 (1994)... Cs 16

N.Y. State Task Force, When Death Is Sought:

Assisted Suicide and Euthanasia in the Medical

Context (1994) 0... ee passim

Portenoy et al., Determinants of the Willingness to

Endorse Assisted Suicide: A Survey of Physi-

cians, Nurses, and Social Workers, —— Psycho-

somatics ——- (forthcoming April 1997) _.._ 14

Preston & Mero, Observations Concerning Termi-

nally I Patients Who Choose Suicide, 4 J.

Pharm. Care & Pain Symp. Control 183 (1996) .. 7

Quill, Death and Dignity: A Case of Individualized

Decision Making, 324 New Eng. J. Med. 691

On eee 5

Van der Maas et al., Euthanasia and Other Medical

Decisions Concerning the End of Life, 338 Lancet

EES TS SE aa ee 7,11

Wolf, Physician-Assisted Suicide in the Context of

Managed Care, 35 Duq. L. Rev. 455 (1996)... 14

INTRODUCTION AND INTEREST OF AMICI

The right to control one’s medical treatment is among

the most important rights that the law affords each person.

The associations of health care professionals that are

submitting this brief strongly support the recognition and

enforcement of that right. Health care professionals are

committed to their ethical and legal obligations to honor

patient requests to withhold or withdraw unwanted life-

prolonging treatment and to provide patients with all

medication necessary to alleviate physical pain, even in

circumstances where such medication might hasten death.

Through these means, patients can avoid entrapment in a

prolonged, painful, or overly medicalized dying process.

The decision below, however, takes the unprecedented

step of announcing a constitutional right to control the tim-

ing and manner of one’s death through the use of physician-

assisted suicide. The court of appeals would confer upon

health care professionals the awesome responsibility of

deciding who, among the many patients who would request

physician-assisted suicide, are eligible to obtain the assist-

ance of a physician in killing themselves. The power to

assist in intentionally taking the life of a patient is an-

tithetical to the central mission of healing that guides

both medicine and nursing. It is a power that most health

care professionals do not want and could not control.

Once established, the right to physician-assisted suicide

would create profound danger for many ill persons with

undiagnosed depression and inadequately treated pain,

for whom physician-assisted suicide rather than good pal-

liative care could become the norm. At greatest risk

would be those with the least access to palliative care—

the poor, the elderly, and members of minority groups.

The American Medical Association (“AMA”), the

American Nurses Association (“ANA”), the American

Psychiatric Association (“APA”), and 43 other national

specialty and state medical societies that are submitting

this brief ' represent hundreds of thousands of health care

professionals who care each day for millions of Americans.

Our members have deep compassion for those who are

suffering the pain and torment of chronic or terminal ill-

ness. We have learned much in recent years about pallia-

tive care. Our experience is that a desire for physician-

assisted suicide does not persist in patients who receive

good palliative care.

Amici acknowledge that many patients today do not

receive proper treatment for their pain, depression, or

Psychological distress. Nevertheless, physician-assisted sui-

cide is not the right answer to the problem of inade-

quate care. Although for some patients it might appear

compassionate intentionally to cause death, institutional-

izing physician-assisted suicide as a medical treatment

would put many more patients at serious risk for unwanted

and unnecessary death. Rather than recognize a right

to physician-assisted suicide, our society instead should

recognize the urgent necessity of extending to all patients

the palliative care they need and redouble our efforts to

provide such care to all.

To explain more fully the bases for amici’s position,

we begin with a discussion of important aspects of caring

for seriously ill patients who request physician-assisted

suicide that were misapprehended by the court below.

HEALTH CARE BACKGROUND

The core of the Ninth Circuit's opinion is its view

that each individual has a fundamental liberty interest

“in choosing the timing and manner of one’s death.”

Pet. App. A-21. While the phrase is superficially appeal-

ing, it belies the sad reality that none of ws has the er

completely to control the circumstances of our death, Ii.

ness, itself only one potential cause of death, comes

* Pursuant to Rule 99.8 of the Rules of this Court, the parties

have consented to the filing of this brief. The parties’ letters of

consent have been filed with the Court. A brief description of each

amicus appears in Appendix A to this brief.

unbidden and with unpredictable effect. The Ninth Cir-

cuit’s argument thus rests, at bottom, on an unrealistic

assumption about our ability to control death.

At the same time, the Ninth Circuit overlooked the

degree to which—without resorting to physician-assisted

suicide—patients already can control aspects of the dying

Process. By recognizing patients’ rights to refuse un-

wanted medical treatment or to have such treatment with-

drawn, and by providing adequate pain relief, the health

Care professions have the Capacity to prevent a prolonged

and painful dying process. While much more remains

to be done to ensure that all patients have access to good

Palliative care and effective advance care planning, see

page 15, infra, experience to date shows that properly

trained health care professionals can effectively meet their

patients’ needs for compassionate end-of-life care without

acceding to requests for suicide.

A. Commitment To Patient Autonomy

The health care professions’ ethical commitment to the

principle of patient autonomy plays a vital role in provid-

ing patients with the ability to control their course of

treatment. This commitment is expressed, for example,

in Opinion 2.20 of the AMA Code of Medical Ethics.

Opinion 2.20 provides, in part, that “[tjhe principle of

patient autonomy requires that physicians respect the deci-

sion to forgo life-sustaining treatment of a patient who

~ possesses decisionmaking capacity.” AMA Council on

Ethical and Judicial Affairs, Code of Medical Ethics:

Currene Opinions § 2.20 (App. lla-12a); see also ANA,

Cede for Nurses with Interpretive Statements § 1.1 (App.

19a) (patients “have the moral right to determine what

will be done with their own person” and “to accept, refuse.

or terminate treatment without coercion”).

Opinion 2.20 has great significance for patients near

the end of life. To those who fear unwanted medical in-

fervention in the dying process, the message of Opinion

2.20 is that a patient need not accept, and physicians must

not impose, a medical treatment that the patient does not

want. As a practical matter, this means that a patient can

refuse not only mechanical interventions such as respira-

tors, feeding tubes, or dialysis, but also chemotherapy,

antibiotics, or any other treatment that would have the

effect of prolonging the patient's life. App. 12a. Through

such means, persons suffering from chronic diseases (such

as multiple sclerosis or amyotrophic lateral sclerosis) as

well as terminal diseases can plan with their physicians

which life-sustaining treatment to accept.

Opinion 2.20 unequivocally establishes that “[{p]hysi-

cians have an obligation to relieve pain and suffering and

to promote the dignity and autonomy of dying patients in

their care” and, significantly, that this obligation “includes

providing palliative treatment even though it may fore-

seeably hasten death.” App. 13a; see also App. 19a-20a

(ANA Position Statement on Promotion of Comfort and

Relief of Pain in Dying Patients). Although criticized by

the Ninth Circuit as illogical, the recognition that physi-

cians should provide patients pain medication sufficient to

ease their pain, even where that may serve to hasten death,

is vital to ensuring that no patierc suffer from physical

pain.

The principle of patient autonomy, however, has never

been understood to give patients the right to every pro-

cedure or treatment they might demand. For example,

physicians need not provide futile treatment—that is,

treatment that has no reasonable chance of helping the

patient. Code of Medical Ethics § 2.035 (App. 15a).

Similarly, physicians should not provide patients with

treatments that are known to be ineffective or harmful.

Such limitations are important. If a patient may demand

and receive anything from a health care professional,

individuals who practice the healing arts will cease being

professionals.

B. Physician-Assisted Suicide

Long viewed as outside the realm of legitimate health

care, physician-assisted suicide occurs “when a physician

facilitates a patient’s death by providing the necessary

means and/or information to enable the patient to per-

form the life-ending act.” Code of Medical Ethics § 2.211

(App. Ila); AMA Council on Ethical and Judicial

Affairs, Physician-Assisted Suicide, 10 Issues in L. &

Med. 91, 92 (1994). The practice involves physicians

intentionally providing patients with the means for suicide,

such as prescribing barbiturates in an amount certain to

cause death and for the purpose of causing death. See,

e.g., Quill, Death and Dignity: A Case of Individualized

Decision Making, 324 New Eng. J. Med. 691 (1991).

The ethical prohibition against physician-assisted suicide

is a cornerstone of medical ethics. Its roots are as ancient

as the Hippocratic Oath that a physician “will neither

give a deadly drug to anybody if asked for it, nor...

make a suggestion to this effect,” and the merits of the

ban have been debated repeatedly in this nation since

the late nineteenth century. Most recently, the AMA has

reexamined and reaffirmed the ethical prohibition against

physician-assis'*d suicide in 1977, 1988, 1991, 1993,

and 1996.* Physician-assisted suicide remains “funda-

mentally incompatible with the physician’s role as healer,

would be difficult or impossible to control, and would pose

serious societal risks.” Code of Medical Ethics § 2.211

(App. lla). Other health care professions have similar

tenets. See, e.g., App. 19a (ANA Position Statement on

Assisted Suicide). Physicians and nurses have the ability

to respond sensitively to the concerns of seriously ill and

dying patients and can meet their patients’ needs without

acceding to requests for suicide.

C. Requests for Physician-Assisted Suicide

The Ninth Circuit’s decision rests in substantial part on

the assumption that there are a “growing number of termi-

* AMA Council! on Scientific Affairs, Good Care of the Dying

Patient, 275 SAMA 474, 477 (1996) Most recently, in the after-

math of the decision below, the AMA’s House of Delegates in June

1996 overwhelmingly endorsed a recommendation to affirm the ban

on physician-assisted suicide.

nally ill patients who die protracted and painful deaths,”

Pet. App. A-53, and who, absent physician-assisted suicide,

are condemned to face “unmitigated torture” before they

die. Pet. App. A-106. Implicit in the court’s holding are

the views that those who request suicide do so to avoid

excruciating pain, and that health care professionals can

do nothing compassionate in response other than to assist

in suicide. The court cited no evidence to support these

views. In fact, available information demonstrates that

these views are misguided.

1. There is no evidence that increasing numbers of

patients are dying in severe pain. To the contrary, “{t}he

potential for management of pain has recently improved,

both through the development of better techniques and

through enhanced care delivery through hospice and pal-

liative care efforts.” AMA Council on Scientific Affairs,

Good Care of the Dying Patient, 275 JAMA 474, 475

(1996). The pain of most terminally ill patients can be

controlled throughout the dying process without heavy se-

dation or anesthesia. /d.; see, e.g., Byock, Consciously

Walking the Fine Line: Thoughts on a Hospice Response

to Assisted Suicide and Euthanasia, 9 J. Pall. Care 25,

26 (1993); Foley, The Relationship of Pain and Symptom

Management to Patient Requests for Physician-Assisted

Suicide, 6 J. Pain & Symp. Mgmt. 289 (1991); Levy,

Pharmacologic Treatment of Cancer Pain, 335 New Eng.

J. Med. 1124 (1996). For a very few patients, how-

ever, sedation to a sleep-like state may be necessary in

the last days or weeks of life to prevent the patient

from experiencing severe pain. N.Y. State Task Force,

When Death Is Sought: Assisted Suicide and Euthanasia

in the Medical Context 40 & n.21 (1994). Notably, when

pain medication is properly administered, for most patients

the risk of respiratory depression that hastens death is

minimal. N.Y. State Task Force at 162.

Given the increasing ability to control pain, it is not

surprising that, contrary to the Ninth Circuit’s assumption,

the demand for physician-assisted suicide does not come

principally from those seeking relief from physical pain.

A recent study of such requests in Washington State found

that “neither severe pain nor dyspnea was a common pa-

tient concern, suggesting that intolerable physical symptoms

are not the reason most patients request physician-assisted

suicide or euthanasia.” Back et al., Physician-Assisted

Suicide and Euthanasia in Washington State, 275 JAMA

919, 924 (1996). This finding is consistent with a report

from Compassion-in-Dying, see Preston & Mero, Observa-

tions Concerning Terminally Ill Patients Who Choose Sui-

cide, 4 J. Pharm. Care & Pain Symp. Control 183, 187

(1996) (“[iJn no patient was pain the primary reason for

suicide”); with other studies of patients and physicians,

see Emanuel et al., Euthanasia and Physician-Assisted Sui-

cide: Attitudes and Experiences of Oncology Patients, On-

cologists, and the Public, 347 Lancet 1805, 1809 & nn.6,

12 (1996) (“[p]atients experiencing pain were not in-

clined to euthanasia or physician-assisted suicide”); as

well as with studies of Holland’s experience, see Van der

Maas et al., Euthanasia and Other Medical Decisions Con-

cerning the End of Life, 338 Lancet 669, 672 (1991)

(relief from pain was mentioned as a factor in fewer than

half of cases, and was the sole factor in only five percent

of cases).

This is not to say that all patients have access to and

actually receive adequate pain relief and good palliative

care. They do not. The delivery of such care is “grossly

inadequate” today, and efforts to make such care univers-

ally available have not yet succeeded. N.Y. State Task

Force at 43-47; Connors et al., A Controlled Trial to

Improve Care for Seriously Ill Hospitalized Patients, 274

JAMA 1591 (1995). There are many obstacles to the

delivery of adequate pain management. These include a

lack of professional training and knowledge, misconcep-

tions about the risks of addiction and respiratory depression

associated with pain medication, inadequate communica-

tion (reflecting both inadequate attention frum health care

professionals and undue reluctance of patients and their

families to use pain relief medication), and concern over

criminal or licensure actions against the prescribing physi-

cians. N.Y. State Task Force at 44-47; AMA Council,

275 JAMA at 476. Of further concern, individuals

treated at centers that serve predominantly minority pa-

tients are more likely than others to receive inadequate

pain treatment; the same is true for elderly and female

patients. N.Y. State Task Force at 44 & n.37. Yet for

“many patients, pain and suffering could be alleviated

using medications and techniques that have been widely

publicized and require only modest resources.” Jd. at 35.

There is, in short, compelling evidence of the need to

ensure that all patients have access to quality palliative

care, but not of any need for physician-assisted suicide in

order to control pain.

2. Most patients that request suicide do so out of con-

cerns that, in the future, their pain may become intoler-

able, they may suffer a loss of dignity and become de-

pendent upon others, or they will excessively burden

their families. Back et al., 275 JAMA at 921; Eman-

uel et al., 347 Lancet at 1807. The suffering that

such concerns may cause is real. But if the anticipatory

and existential nature of that suffering is recognized and

addressed, it can often effectively be alleviated. Foley, 6

J. Pain & Symp. Mgmt. at 289-90; N.Y. State Task Force

at x, 181.

Concerns about future loss of control, loss of dignity, or

pain frequently can be met by reassuring the patient of a

continuing commitment to attentive comfort care and by

assisting the patient to confront an underlying and un-

spoken fear of death. “Many patients and physicians dis-

place anxieties about death onto the circumstances of dy-

ing: pain, dependence, loss of dignity, and the unpleasant

side effects of medical treatments. Focusing on or becom-

ing enraged at the process distracts from the fear of death

itself.” Hendin, Suicide, Assisted Suicide, and Euthanasia:

Lessons from the Dutch Experience, Summary of Testi-

mony Presented to House Subcommittee on the Constitu-

tion | (1996). A full approach to palliative care ad-

dresses spiritual and existential feelings as well as personal

and social burdens, using a team approach that draws on

social workers and pastors as well as physicians and

nurses. Clinicians with experience assisting dying pa-

tients to confront such concerns report that the desire for

death passes, and that patients say they have found un-

expected meaning in their lives that makes their final days

worth living. E.¢., Cundiff, Euthanasia Is Not the Answer

29-39 (1992).

The anxieties that can accompany serious illness are

often complicated, however, by the onset of depression.

Depression is the single factor found to be a significant

predictor of the desire for death. Emanuel et al., 347

Lancet at 1809; Chochinov ef al., Desire for Death in the

Terminally Ill, 152 Am. J. Psych. 1185, 1190 (1995).

In one study of 44 terminally ill patients, all but one of the

eleven patients with “clinical depressive illness” expressed

some wish for death, while none of the remaining 33

expressed such a wish. Brown ef al., Is it Normal for

Terminally Ill Patients to Desire Death?, 143 Am. J. Psych.

208, 210 (1986); see also Conwell & Caine, Rational

Suicide and the Right to Die: Reality and Myth, 325

New Eng. J. Med. 1100, 1101 (1991) (“of 44 patients

in the later stages of cancer, only 3 had considered sui-

cide, and each of them had a severe clinical depression”);

AMA Council, 275 JAMA at 475; Chochinov et al., 152

Am. J. Psych. 1185. In this regard, those with terminal

or chronic illness are no different than others who express

suicidal wishes. Most who commit suicide suffer from

depression or some other diagnosable psychiatric illness,

which generally is treatable. Hendin, Suicide and the

Request for Suicide: Meaning and Motivation, 35 Dua.

L. Rev. 285, 285 (1996); N.Y. State Task Force at 13.

180.

It is clear that “a substantial proportion of terminally

ill patients who express a desire to die could potentially

benefit from a trial of treatment for depression.” Cho-

chinov et al., 152 Am. J. Psych. at 1190. For example,

“[tJhe elderly appear to be more prone than younger

victims to take their lives during the type of acute depres-

sive episode that responds most effectively to available.

modern treatments.” Conwell & Caine, 325 New Eng. J.

Med. at 1101. Nevertheless, most physicians fail to recog-

nize depression, thereby precluding the opportunity for

effective treatment. Jd. at 1101-02.

3. The demand for physician-assisted suicide among

the terminally ill is thus best understood not as a neces-

sary response to untreatable pain uniquely felt by the

dying, but in the broader context of requests for suicide

generally. “Among all suicides, only two percent to four

percent are terminally ill.” N.Y. State Task Force at 12.

Moreover, while severe chronic or terminal illness is a risk

factor for suicide, “only a small percentage of terminally

ill or severely ill patients attempt or commit suicide.” Id.

at 9, 13. And those patients are similar to physically

healthy individuals who contemplate suicide—they “are

usually suffering from a treatable mental illness, most

commonly depression.” /d.

Thus, contrary to the Ninth Circuit’s most basic prem-

ise, terminal illness does not present a special case for

physician-assisted suicide. Patients with chronic or ter-

minal illness who seek physician-assisted suicide are typic-

ally depressed or anticipating extreme suffering. Their

needs and concerns are ones that health care professionals

can meet with compassionate care. There may be, even

in a system that provides optimal palliative care to all

patients, individuals whose pain may not be treatable

absent sedation and whose wish for physician-assisted

suicide to avoid sedation is sincere. But the number

of such individuals is likely to be very small, and

the social cost of accommodating their preference for

physician-assisted suicide over sedation and withdrawal

of treatment is likely to be high. For reasons that follow,

even if physician-assisted suicide were thought appropriate

for such patients, no one can predict with any confidence

that physician-assisted suicide, if authorized by the state,

could reliably be limited to them.

D. The Inherent Difficulty In Regulating Physician-

Assisted Suicide

Proponents of physician-assisted suicide agree that lines

must be drawn between categories of individuals for

able or unacceptable. The Ninth Circuit permitted

physician-assisted suicide for those with a “terminal ill-

ness.” Pet. App. A-113 to A-114. In Vacco v. Quill,

No. 95-1858, the Second Circuit purported to restrict

physician-assisted suicide narrowly to those who were “in

the final stages of terminal illness.” Pet. App., No. 95-

1858, at 4a. Both courts expressly limited their holdings

to the provision of physician-assisted suicide (Pet. App.,

assisted suicide and voluniary euthanasia. Pet. App.

A-100. The “critical line,” the Ninth Circuit Stated, was

between the “voluntary and involuntary termination of

an individual's life.” /d.

The Ninth Circuit declared that “while there is always

room for error in any human endeavor, we believe that

sufficient protections can and will be developed by the var-

tous states.” Pet. App. A-103 to A-104. As two com-

menters note, however: “Where? Which state has done

so? In its 153-page opinion, not once does the Ninth Cir-

cuit attempt to show how this might be accomplished.”

Callahan & White, The Legalization of Physician-Assisted

Suicide: Creating a Regulatory Potemkin Village, 30 U.

Rich. L. Rev. I, #3 (1996). Existing rules limiting

physician-assisted suicide are not being followed today.

AMA Bd. of Trustees, Euthanasia / Physician-Assisted Sui-

cide: Lessons in the Dutch Experience, 10 Issues in L. &

Med. 81 (1994). For example, the study of euthanasia

and physician-assisted suicide commissioned by the Dutch

government showed that approximately one in four cases

of euthanasia did not qualify as voluntary under the guide-

lines. Van der Maas et al, 338 Lancet at 671; Kass &

Lund, Physician-A ssisted Suicide, Medical Ethics and the

Future of the Medical Profession, 35 Dug. L. Rev. 395

412-13 & nn.29-30 (1996). Different social circumstances

in the United States make effective regulation even less

likely here than in Holland. See AMA Bad. of Trustees. 10

Issues in L. & Med. at 88-89. Difficulties inherent in the

regulation of physician-assisted suicide suggest that even

strenuous efforts to regulate such a practice will not

succeed.

1. One proposed restriction is to limit physician-

assisted suicide to those in the last stages of a terminal

illness. An initial difficulty arises, however, in identifying

the eligible class. Available evidence suggests “that phy-

sicians’ predictions of expected remaining life are generally

inaccurate.” Callahan & White, 30 U. Rich. L. Rev. at 46

& n.202. For example, while admission to hospice is con-

tingent on a diagnosis of six or fewer months to live, a

recent study showed that 15 percent of hospice pa-

tients survived longer than six months and eight percent

survived longer than one year. Christakis & Escarce,

Survival of Medicare Patients after Enrollment in Hos-

pice Programs, 335 New Eng. J. Med. 172 (1996); see

Lynn et al., Defining the “Terminally III’: Insights from

SUPPORT, 35 Dugq. L. Rev. 311 (1996). Life expect-

ancy is thus inherently problematic as a criterion for

establishing eligibility to exercise a constitutional right.

The lack of cleevent Hees Setnees Gane whe aoe Se

minally ill and those who are in the last stages of a

nal illness suggests that any attempt to limit the avail.

ability of physician-assisted suicide to the latter would be

arbitrary. But the same is true for the line between the

terminally ill and the chronically ill. No one can confi-

dently say that the degree of pain or suffering experienced

ill. Moreover, if the pain or suffering is thought to be

irremediable, then the longer the patient’s life expectancy,

logically the more pain and suffering awaits the patient.

Kamisar. Against Assisted Suicide—Even a Very Limited

Form, 72 U. Det. Mercy L. Rev. 735, 737, 740-41

(1995). There would thus be little to prevent expansion

of physician-assisted suicide beyond the confines of the

last stages of terminal illness.

on Euthanasia in the Netherlands,” in Euthanasia, Clinical

one recent, much-discussed case, a physician, who assisted

ance of depressed suicidal petionts os eligible for assisted

suicide or euthanasia,” Hendin, Seduced by Death: Doc-

tors, Patients, and the Dutch Cure, 10 Issues in L. & Med.

JAMA 1097 (1990). Moreover, poor and minority indi-

problem. Even if, as one would expect, health care insur-

ilies need. Wolf, Physician-Assisted Suicide in the Context

of Managed Care, 35 Dug. L. Rev. 455 (1996). These

limitations on the availability of proper care clearly can

place pressure on patients to express a wish for suicide

that they might not otherwise feel. As the Chief of the

Pain Service at Memorial Sloan-Kettering Cancer Center

reports, “[w]e comoaly see [requests for physician-assisted

suicide] dissolve with adequate control of pain and other

symptoms.” Foley, 6 J. Pain & Symp. Mgmt. at 290.

Providers willing to comply with requests for suicide

may be among those least sensitive to the impact of these

pressures and least familiar with alternative responses to

their patients’ needs. A recent study shows that support for

physician-assisted suicide was highest among those health

care professionals least knowledgeable about pain symptom

management and least capable (due to emotional exhaus-

tion) of empathizing with the patient. Portenoy et ai.,

Determinants of the Willingness to Endorse Assisted Sui-

cide: A Survey of Physicians, Nurses, and Social Work-

ers, Psychosomatics ———- (forthcoming April 1997) ;

see also Bachman et al., Attitudes of Michigan Physicians

and the Public toward Legalizing Physician-Assisted Suicide

and Voluntary Euthanasia, 334 New Eng. J. Med. 303, 308

(1996) (“doctors who had the least contact with termi-

nally ill patients were the most likely to support the legal-

ization of assisted suicide”). There is thus added reason

to doubt that patients seeking physician-assisted suicide

would receive adequate palliative care before such a re-

quest is granted.

Second, separating the wishes of the patient from those

of the family is extremely problematic. One of the most

common reasons why patients request suicide is to spare

their families and loved ones the burder.s and expense of

caring for them. See, e.g., Blendon et al., Should Physi-

cians Aid their Patients in Dying?, 267 JAMA 2658.

2660-61 (1992); Emanuel, Cost Savings at the End of

Life: What Do the Data Show?, 275 JAMA 1907

(1996). But to what extent are these feelings the result

of the family’s expectations? In one recent study, families

of elderly, terminally ill patients were significantly more

compromised his or her dignity. Byock, “Physician-

Assisted Suicide Is Not an Acceptable Practice for Physi-

cians,” in Physician-Assisted Suicide: Ethical Positions,

Medical Practices, and Public Policy Options —— (Weir

ed., forthcoming May 1997).

Third, experience to date provides little basis for con-

fidence that health care professionals can reliably deter-

mine whether patients have provided truly informed con-

sent for assisted suicide. Frank, sensitive, and extended

conversations between physicians and patients are pre-

sumptively antecedents to such a determination. Such

conversations would be infinitely more complex than any

that regularly occur today. For example, ineffective com-

munication remains a major obstacle to achieving pain

management, American Pain Society Quality of Care Com-

mittee, Quality Improvement Guidelines for the Treatment

of Acute Pain and Cancer Pain, 274 JAMA 1874, 1874

(1995), even though pain relief is plainly a goal shared

by both health care professionals and patients. And

despite their importance, discussions about advance care

planning are rare and poorly handled, which hampers ef-

fective and responsive end-of-life care. Emanuel, “Ad-

vance Directives,” in Principles and Practice of Supportive

Oncology (Berger et al. eds., forthcoming 1996).

The well-established phenomena of transference and

countertransference further complicate the problem of

relyi physicians and nurses to identify voluntary

oupame.” Sete Physicians and Their Patients’ Suicides,

271 JAMA 1786 (1994). Particularly when caring for

chronically ill, dying, or suicidal patients, caregivers often

have “difficulty tolerating such patients’ dependency.” /d. at

1786 (footnote omitted). Their “feelings of frustration

and inadequacy occasioned by irreversible medical prob-

lems” sometimes lead them “to withdraw from such patients

or see them as hopelessly or rationally suicidal” when in

fact they are not, which “in turn may precipitate suicides.”

Id. As one physician with extensive experience caring

for dying patients has observed, “[o]nly because I knew

that I could not and would not kill my patients was I

able to enter most fully and intimately into caring for

them as they lay dying.” Miles, quoted in Kass & Lund,

35 Dug. L. Rev. at 418.

Health care professionals also experience great frustra-

tion at not being able to offer the patient a cure. For

some, the ability to offer the patient the “treatment” of

assisted suicide may provide a sense of “mastery over the

disease and the accompanying feelings of helplessness.”

Hendin, Seduced by Death, 10 Issues in L. & Med. at 129.

This may cause health care professionals or a patient's

family to endorse and reinforce requests for suicide more

readily than the patient’s own ambivalent feelings would

warrant. Miles, 271 JAMA at 1786. Published accounts

of physician-assisted suicide reveal that even those physi-

cians who consciously seek only to implement a paticat’s

voluntary request overlook ways in which theirs recommen-

dation and support of physician-assisted suicide reinforced

the patient’s decision for death and left unexamined indi-

cations that the patient really did not want to die. Hendin,

Selling Death and Dignity, 25 Hast. Ctr. Rep. 19 (1995);

Hendin, Seduced by Death, 10 Issues in L. & Med. at

125-29.

3. The obstacles to identifying and _ restricting

physician-assisted suicide to those patients who meet criteria

of terminality and voluntariness are not likely to be over-

come simply by devoting more resources to oversight of

treatment decisions. Indeed, the unprecedented intrusion

into the physician-patient relationship needed independ-

ently to regulate such treatment decisions would be funda-

mentally inconsistent with the private nature of health

care treatment, and all too likely to undermine what

progress has been made in decisions to withdraw or with-

hold life-sustaining treatment and to use effective pain

control. Callahan & White, 30 U. Rich. L. Rev. at 67, 80.

Transforming physician-assisted suicide into a medical

procedure would create momentum in favor of its use that

regulation could not reverse. Were physician-assisted sui-

cide to become a legitimate medical option, then a decision

not to select that option would make many patients feel re-

sponsible for their own suffering and for the burden they

impose on others. Once a patient can choose physician-

assisted suicide, it is but a short step to ask a patient why

he or she has not done so. Indeed, it seems likely the pa-

tient would feel pressure to revisit the question repeatedly,

perhaps every day. Many patients thus will “experience—

and be helped [by their families or physicians] to experi-

ence—their right to choose physician-assisted death as a

duty to do so.” Kass & Lund, 35 Dug. L. Rev. at 407.

SUMMARY OF ARGUMENT

In announcing that the Due Process Clause affords

every individual “a liberty interest in choosing the timing

and manner of one’s death” (Pet. App. A-21), the Ninth

Court was moved by the condition of the individual pa-

tients seeking judicial relief. The court of appeals failed,

however, to examine the broader context in which these

patients acted and the circumstances of many other pa-

tients who will be affected by its judgment. It also failed to

articulate a persuasive constitutional or moral basis for

invalidating these longstanding laws. The ancient prohibi-

tion on physician-assisted suicide reflects a deeply rooted

antipathy to the intentional taking of human life, even

when described as “mercy killing.” None of the decisions

of this Court cited below establishes a basis in the Con-

stitution for invalidating state laws that maintain this

prohibition.

Moreover, even if a liberty interest in committing sui-

cide were recognized, the interests of states in adhering

to the prohibition against physician assistance have grown,

if anything, stronger in recent years. Advances in pallia-

tive care make it possible to control most patients’ pain

without resort to heavy sedation, and further improve-

ments in the provision of appropriate pain relief and com-

passionate end-of-life care will happen. In acting precipi-

tously to declare a constitutional right to physician-assisted

suicide, the Ninth Circuit’s judgment may slow the momen-

tum of such efforts. This Court should refrain from a

constitutional ruling that “may be fraught with serious

consequences to the nation.” New State Ice Co. v. Lieb-

mann, 285 U.S. 262, 311 (1932) (Brandeis, J., dissent-

ing).

ARGUMENT

THIS COURTS DUE PROCESS JURISPRUDENCE

DOES NOT PROVIDE A BASIS FOR FINDING A CON-

STITUTIONAL LIBERTY INTEREST IN OBTAINING

A PHYSICIAN’S ASSISTANCE TO COMMIT SUICIDE.

As a constitutional matter, neither this Court’s juris-

prudence nor any other legal principle supports the infer-

ence of a novel and potentially harmful right to physician-

assisted suicide. The prohibition against physician-assisted

suicide serves a vital social function that, once lost, will

result in incalculable and severe damage to patients and

to the health care profession.

A. The Individual’s Fourteenth Amendment Liberty In-

terest In Refusing Medical Treatment Does Not Encom-

pass The Right To Physician Assistance In Committing

Suicide.

In finding a liberty interest in controlling the timing

and manner of one’s death, the Ninth Circuit relied init-

ially upon this Court’s decision in Cruzan v. Director,

Missouri Department of Health, 497 U.S. 261 (1990).

Pet. App. A-61. The Cruzan case concerned the plight

of Nancy Cruzan, who, at the age of 25, suffered an auto-

mobile accident that left her permanently unconscious,

existing in what is termed a persistent vegetative state.

She was kept alive by means of a surgically implanted

feeding tube for six years after the accident, during which

time she never regained consciousness. 497 U.S. at 266.

When it became clear that Nancy’s condition woulu never

improve, her parents, seeking to implement the treatment

decision they believed she would have made, sought to

discontinue life support functions. Jd. at 268.

Cruzan thus presented the Court with the profoundly

difficult question of whether and in what manner a state

could refuse to honor the request of an incompetent

patient’s surrogate that life support functions be dis-

continued. In a careful and narrowly drawn opinion, the

Court suggested that “the forced administration of life-

sustaining medical treatment, and even of artificially-

delivered food and water essential to life, would implicate

a competent person’s liberty interest,” but that “the dra-

matic consequences involved in refusal of such treatment

would inform the inquiry as to whether the deprivation

of that interest is constitutionally permissible.” Jd. at 279.

The Court then upheld the State of Missouri’s require-

ment that an incompetent patient’s wish to cease treatment

be proved by clear and convincing evidence. Id. at 280-82.

The liberty interest discussed in Cruzan is grounded in

the common law protection afforded to every person to

refuse unwanted medical treatment. Jd. at 269-70. Med-

ical treatment performed without the patient's consent his-

torically has been treated as a battery, excusable only

in emergency circumstances. Id. at 270; Keeton et al.

Prosser and Keeton on the Law of Torts 39-42,

190 (Sth ed. 1984); Winters v. Miller, 446 F.2d 65,

68 (2d Cir.), cert. denied, 404 U.S. 985 (1971). The

right to refuse treatment is the “‘>zical corollary” of the

prohibition against medical treatmest without the patient’s

informed consent. Cruzan, 497 U.S. at 270. These prin-

ciples constitute fundamental tenets of the health care

professions and are readily embraced by amici as a matter

of both common law and constitutional right.

Physician-assisted suicide does not involve the imposi-

tion of treatment against the patient’s will. It involves

instead the furnishing of assistance that is (at least in

theory) desired by the patient. Thus, the rationale that

unwanted medical treatment can be refused because it

amounts to a common law assault and battery provides

no legal or logical basis for finding a right to physician-

assisted suicide.

In other contexts, courts, including this one, have been

reluctant to find a right to obtain medical treatment.

See New York State Opthalmological Soc’y v. Bowen,

854 F.2d 1379, 1389-92 (D.C. Cir. 1988), cert. denied,

490 U.S. 1098 (1989); cf. United States v. Rutherford,

442 U.S. 544 (1979) (terminally ill cancer patients not

entitled to a drug that has not been approved by the

Food and Drug Administration). Amici believe there

should be constitutional protection for the “freedom to de-

termine the course of [one’s] own treatment.” Cruzan,

497 U.S. at 289 (O'Connor, J., concurring). The as-

sistance sought in this case, however, is to a procedure

that neither state law nor the medical profession has ever

considered to be a legitimate medical treatment. It would

be particularly ironic, therefore, if the first “treatment” to

which patients were held to have a constitutional right

were physician-assisted suicide.

The Ninth Circuit also relied upon broader linguistic

formulations of the sources of the right to refuse treat-

ment, such as the “right to be let alone,” Olmstead v.

United States, 277 U.S. 438, 478 (1928) (Brandeis, J.,

dissenting), or the right of every adult “to determine what

shall be done with his own body,” Schloendorff v. Society

of New York Hosp., 105 N.E. 92, 93 (N.Y. 1914) (Car-

dozo, J.). These formulations are rightly looked to as indi-

cative of the importance and centrality of the autonomy

principle. But the paradox of invoking autonomy as jus-

tification for killing oneself has long been noted.* And

® Whether the principle of autonomy can support a right to take

one’s life is an issue on which eminent philosophers disagree. See,

in practice, the principle has never been interpreted as

sweepingly as the Ninth Circuit proposes. Cruzan itself

alluded to the limits of the autonomy principle, noting

that the consequences of a particular procedure “would

inform the inquiry” as to whether treatment can be re-

fused. 497 U.S. at 279. This Court has repeatedly recog-

nized other limits as well. For example, laws prohibiting

prostitution or use of illicit drugs, or mandating vaccina-

tions or blood tests, have never been considered con-

stitutionally infirm. See, e.g., Washington v. Harper,

494 US. 210, 221-22 (1990) (state may administer

antipsychotic medicine to mentally ill prisoner over

his objection); Jacobson v. Massachusetts, 197 USS.

11, 24-30 (1905) (state may require vaccinations be-

cause Fourteenth Amendment “does not import an abso-

lute right” to be “wholly freed from rest:aint”); Schmer-

ber v. California, 384 U.S. 757 (1966) (police may per-

form alcohol-blood test of suspect over his objection);

Breithaupt v. Abram, 352 U.S. 432, 439 (1957) (same);

cf. Employment Div. v. Smith, 494 U.S. 872, 878 (1990)

(state may prohibit use of peyote even as part of religious

ritual). Accordingly, the principle of bodily integrity,

while of central and vital importance, does not in itself

justify a constitutional right to physician-assisted suicide.

B. Physician-Assisted Suicide Lies Outside The Continuum

Of Liberty Interests That This Court Has Previously

Recognized As Constitutionally Protected.

1. The Ninth Circuit also relied more broadly on the

balance of this Court’s due process jurisprudence. Height-

ened judicial protection is provided for some rights that

have no textual support in the Constitution if they are

“implicit in the concept of ordered liberty,” such that

e.g., N.Y. State Task Force at 81 (contrasting Kant’s view that

“taking one’s own life was inconsistent with the notion of

autonomy” with Hume’s view that “when life is most plagued by

suffering, suicide is most acceptable”). Surely, given a choice

between Kant and Hume, the Constitution allows state legislatures,

and not federal courts, to make the decision.

“neither liberty nor justice would exist if they were sacri-

ficed.” Palko v. Connecticut, 302 U.S. 319, 325-26

(1937). These liberties, which are “deeply rooted in this

Nation’s history and tradition,” Moore v. City of East

Cleveland, 431 U.S. 494, 503 (1977) (footnote omitted),

may be located on a “rational continuum which, broadly

speaking, includes a freedom from all substantial arbitrary

impositions and purposeless restraints ....” Poe v. Ull-

man, 367 U.S. 497, 543 (1961) (Harlan, J., dissenting) ;

see Pet. App., No. 95-1858, at 17a-18a (identifying pre-

viously recognized rights ).

Asserted rights that are absent from both the text of the

Constitution and the traditions of our nation lie at the

furthest edge of the continuum. Moore, 431 U.S. at 503.

And the constitutional stature of conduct that has long

been prohibited by state law is even more tenuous.

Physician-assisted suicide is not a right that our society

historically has protected against state interference. Both

suicide and attempted suicide were unlawful under the

Common Law of England and the laws of the colonies.

See 4 Blackstone, Commentaries on the Laws of England

89 (1978); Marzen et al., Suicide: A Constitutional

Right?, 24 Dug. L. Rev. 1, 56-57 (1985). Although all

States have chosen to decriminalize both suicide and at-

tempted suicide, 35 states continue to proscribe assisting

in another’s suicide, and eight other states prohibit it as

a common law crime. 2 Meisel, The Right to Die § 18.17,

at 478 Table 18-1 (2d ed. 1995). This long-standing

governmental and societal antipathy to aiding in a suicide,

while perhaps not conclusive, counsels strongly against

finding the liberty interest urged by respondents here.*

2. Nevertheless, the Ninth Circuit identified a right to

physician-assisted suicide by relying heavily upon Planned

* Although the Ninth Circuit relied on survey data to suggest a

change in popular views, Pet. App. A-48 to A-49, it cited no reason

why popular preferences could not be vindicated through changes

in state law by the political branches.

Parenthood v. Casey, 505 U.S. 833 (1992). In Casey,

the Court reaffirmed that women have a constitutionally

protected liberty interest in obtaining an abortion that

states may not unduly burden. 505 U.S. at 869. In so

holding, the Court stated that abortion was akin to “per-

sonal decisions relating to marriage, . . . child rearing, and

education,” which involve “the most intimate and personal

choices a person may make in a lifetime, choices central

to personal dignity and autonomy,” and which are “central

to the liberty protected by the Fourteenth Amendment.”

Id. at 851. The Court further stated that “[a]t 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.” Jd. From this, the Ninth Circuit concluded that

a right to physician-assisted suicide falls within the ambit

of personal liberty protected by the Fourteenth Amendment.

Casey and this Court’s other substantive due process

decisions should not be read so broadly. First, whatever

interpretation the quoted language may bear in the ab- ©

stract, its meaning ought not be understood apart from

its context. Casey narrowly reaffirmed an existing liberty

interest principally on grounds of stare decisis. And while

the more sweeping argument that the Due Process Clause

creates a broad realm of autonomy in making personal

choices has been made to the Court on a number of

occasions, the Court has never embraced this principle in

this open-ended form. See, e.g., Cruzan, 497 U.S. at 279

n.7. Presumably this is because, read broadly, the quoted

language would encompass not simply the decisions of the

terminally ill, but a broad range of decisions, including

any person’s choice to terminate his or her life at any

time. See Pet. App. A-28 to A-29. Thus, for example, a

depressed 25-year-old, who has not received appropriate

psychiatric treatment, would have a liberty interest in

obtaining assistance in committing suicide. As discussed

above, such a right has never been recognized by this

Court, by any courts at common law, or indeed, by

respondents.

Second, as a factual matter, a woman's right to choose

to have an abortion differs materially from a patient's

right to physician-assisted suicide. In the physician-

assisted suicide context, the procedure at issue has no life-

or health-promoting benefits whatsoever; its sole function

is to achieve the death of the patient. In the abortion

context, however, the procedure itself is medical and

cannot be performed by an unqualified person without

extreme risk of permanently injuring or killing the woman.

It is instructive in this regard to recall the Court’s rec-

ognition in Roe v. Wade, 410 U.S. 113, 163-64 (1973),

that the state has a compelling interest in preserving the

fetus once the fetus is viable. Neither Roe nor Casey

authorizes any person to assist in killing an independent

human life.

Third, Casey rests in substantial measure on the recog-

nition that undue obstacles to obtaining an abortion, by

restricting a woman’s “ability to control [her] repro-

ductive li[fe],” compromise her “ability to participate

equally in the economic and social life of the Nation.”

Casey, 505 U.S. at 856. Preserving the right of choice

prevents the state from imposing “its own vision of

women’s role” in society. Jd. at 852. The Court’s explicit

recognition of this dimension of the right to choice makes

clear that the Roe and Casey decisions must be under-

stood as grounded in part on the need to afford women

liberty to participate in society equal to that of men.

Others of this Court’s privacy decisions have also served

to invail date similar discriminatory legislation. No com-

parable rationale applies to physician-assisted suicide.

° Thus, the Court’s decision in Loving v. Virginia, 388 U.S. 1

(1967), struck down a ban on interracial marriage that not only

invaded the right to marital privacy but perpetuated discrimination

against black Americans. Similarly, the decision in Griswold v.

Connecticut, 381 U.S. 479 (1965), removed the heavy burden that

lack of access to birth control placed on women’s social, economic,

and political opportunities. Cf. Romer v. Evans, 116 8. Ct. 1620,

1625 (1996). Terminal illness and death, by contrast, do not dis-

Finally, in contrast to other liberty interests previously

recognized by this Court, the liberty interest asserted

here is unique in that the state concededly has compelling

reasons to prohibit its exercise by most who would seek

to invoke it. To begin with, the right to control the timing

and manner of one’s death is not limited to “physician-

assisted suicide” for “terminally ill competent adults who

wish to hasten their deaths with medication prescribed by

their physicians.” Pet. App. A-113 to A-114. The Ninth

Circuit acknowledged that this formulation of the right

was only a starting point, and that the right was likely

to be broadened over time. Without resolving the issue,

the Ninth Circuit signalled that it was likely in the future

to invalidate any proposed distinction between physician-

who could not carry out a suicide themselves. Pet. App.

A-100 to A-101. And, while the Ninth Circuit did not

directly acknowledge the problematic nature of restricting

the right only to the terminally ill, the court did admit

in its view, the critical dividing line was between

voluntary and involuntary termination of life. Jd. at A-100

& n.120. This admission reflects the fact that profound

suffering that can prompt a request for suicide arises not

simply in the terminally ill but in the chronically ill and

physically healthy as well. E.g., Kamisar, 72 U. Det.

Mercy L. Rev. at 739.

At the same time, the Ninth Circuit recognized that

physician-assisted suicide was unjustifiable for many peo-

ple, and proposed to rely on states and the medical pro-

fession to develop procedural safeguards to prevent indi-

viduals that did not meet criteria from receiving assistance

in committing suicide. Admission of the need for extensive

regulation and safeguards to prevent most who would

criminate, and laws prohibiting physician-assisted suicide have no

disproportionate impact upon any particular class of historically

disadvantaged individuals. To the contrary, the risk that physician-

assisted suicide will occur more frequently among disadvantaged

patients should counsel restraint in constitutionalizing the issue.

C. States Have Strong Interests In Prohibiting Physicians

And Nurses From Assisting In Suicides.

Because all agree that the states have strong interests in

regulating life-and-death decisionmaking, the salient ques-

tion is where the Constitution permits the state to draw

the line. Amici urge the Court to permit states to pro-

hibit physician-assisted suicide outright. This approach

is supported by at least three strong state interests.

1. First, states have an overwhelming interest in avoid-

ing preventable suicides. For many reasons, a state could

reasonably conclude that, once physician-assisted suicide

is permitted for any class of patients, the number of

patients committing suicide with the assistance of a physi-

cian will substantially increase no matter how narrowly

the initial restrictions are drawn, and will involve patients

in circumstances far removed from those surrounding the

respondents.

To begin with, states could justifiably conclude that

relatively few, if any, patients would ever legitimately

meet the kind of strict criteria that a state might seek to

impose in lieu of banning physician-assisted suicide out-

right. Most terminally ill patients do not raise the issue

of physician-assisted suicide and, given advances in pallia-

tive care, it is unlikely that the needs of those who do

raise the issue cannot be met through other means.

may, entirely unconsciously but nevertheless powerf

find such an outcome acutely burdensome ant therefor.

subtly encourage the ient to accept death

promote the patient's interest in suicide. The physici

life, which are antithetical to the privacy Seas

patient relationship, there is little likelihood that an in-

appropriate exercise of physician-assisted suicide will ever

come to light. Cf. Bowen v. American Hosp. Ass'n, 476

U.S. 610 (1986).

States also have a strong interest in drawing a defensi-

ble line. The one they now rely upon is well established

in the common law and medical ethics. For example,

although the provision of medication in doses strong

double effect, the doctrine’s reliance upon intent is solidly

grounded in principles of law and morality. Pet. App.

A-163 (Kleinfeld, J., dissenting). The Ninth Circuit

proposed no better alternative, and tacitly admitted that

its own line was flawed. Pet. App. A-100 to A-101. Once

physician-assisted suicide is recognized, how can the

right to voluntary euthanasia be denied to those who

lack the physical ability to administer the life-ending

drug to themselves? And once such a right is recog-

nized for those who are terminally ill, how can it be

denied to those who, chronically ill or irremediably de-

pressed, claim to be suffering comparably unendurable

pain? Even the ultimate stopping point proposed by

the Ninth Circuit—between voluntary and involuntary

the determination of physician intent. Thus, not only

does the Ninth Circuit’s line lack any basis in the common

law, it is as vulnerable to the Ninth Circuit’s own analysis

as is the line states draw today.

2. Second, states can argue strongly that abandoning

the prohibition on physician-assisted suicide will under-

mine efforts to expand the provision of palliative care to all

patients. Although such efforts would not end if physician-

assisted suicide were permitted, the prohibition on

physician-assisted suicide provides health care profes-

sionals with a tremendous incentive to improve and ex-

pand the availability of palliative care. Permitting

physician-assisted suicide would also jeopardize the hard-

won advances firmly to establish for all patients a right

not only to have unwanted medical treatment withheld

or withdrawn but also to receive pain medication suffi-

cient to case pain, even if that would hasten the patient's

death. The widespread acceptance of these rights by

health care professionals, courts, legislatures, and the

public depended upon the recognition and acceptance of

the distinction between these rights and physician-assisted

suicide. See generally 2 Meisel § 18.18, at 479-85. If

that important boundary is lost, much support for with-

holding and withdrawing treatment or providing ample

pain medication may be lost as well.

3. Finally, states have a strong interest in avoiding the

damage to the health care professions and their ability to

serve patients that would flow from an abandonment of

the prohibition against physician-assisted suicide. E.g.,

Semler v. Oregon State Bd. of Dental Examiners, 294 US.

608, 612-13 (1935) (state’s strong interest in “mainte-

nance of professional standards” permits it to enforce

a general rule even though in particular instances there

might be no actual” harm); Ohralik v. Ohio State Bar

Ass'n, 436 U.S. 447, 460 (1978) (state interest in “main-

taining Standards among members of the licensed pro-

fessions” is “particularly strong”); Shapero v. Kentucky

Bar Ass'n, 486 U.S. 466, 485 (1988) (O'Connor, J.,

dissenting) (state “should have considerable latitude to

ban conduct that “undermines the substantial govern-

ment interest in promoting the high ethical standards” of

a profession). Health care professionals have long under-

stood that with the right to practice comes enormous

responsibility. Patients come to physicans and nurses at

times of greatest need and vulnerability, depending on

them to respond to their needs capably and faithfully.

Many patients may understandably wonder, finding them-

selves badly injured and in the care of a physician they

do not know but whose license permits him or her to

assist in taking the lives of patients, whether that physi-

cian will truly act only to preserve their lives. Will they

be confident, as they watch a physician draw a dose of

morphine, that the physician is committed only to easing

their pain and not to taking their lives? See Kass &

Lund, 35 Dug. L. Rev. at 408. The ban on physician-

assisted suicide helps ensure that patients will never lose

the trust that must exist for the relationships between

health care professionals and patients to flourish.

CONCLUSION

For the reasons stated above, the judgment of the court

of appeals should be reversed.

Respectfully submitted,

Kirk B. JOHNSON CARTER G. PHILLIPS

MICHAEL L. ILE MARK E. Happap *

BRUCE D. BLEHART PAUL E. KALB

AMERICAN MEDICAL KATHERINE L. ADAMS

ASSOCIATION CHRISTOPHER D. Moore

515 North State Street SIDLEY & AUSTIN

Chicago, IL 60610 1722 Eye Street, N.W.

(312) 464-5000 Washington, D.C. 20006

(202) 736-8000

NEWTON N. MINOW

JACK R. BIERIG

SIDLEY & AUSTIN

One First National Plaza

Chicago, IL 60603

(312) 853-7000

Attorneys for Amici Curiae

November 12, 1996 * Counsel of Record

APPENDICES

APPENDIX A

AMICI CURIAE

The American Medical Association (AMA) is a private,

voluntary, non-profit organization of physicians. The

AMA was founded in 1847 to promote the science and

art of medicine and to improve the public health. The

290,000 members of the AMA practice in all states and

in all fields of medical specialization. Among other ef-

forts, the AMA is working with the Robert Wood Johnson

Foundation in the developmzat of an education program

on advance care planning and palliative medicine designed

to reach every physician and to improve the quality of

patient care for individuals at the end of life.

The American Nurses Association (ANA) is an association

of registered nurses that is dedicated to the advancement

of the goals and interests of registered nurses and of the

nursing profession generally. It was founded in 1897 to

promote the professional and educational advancement of

nurses and to establish and maintain a code of ethics for

the nursing profession. The ANA has 180,000 members

and represents registered nurses in the United States and

its territories through its 53 constituent member organiza-

tions. The ANA establishes professional standards for

nursing practice, nursing education, nursing services and

a code of ethical conduct for nurses, and the Association

is dedicated to meeting the needs of nurses as well as the

needs of patients and families.

The American Association of Critical-Care Nurses

(AACN) is the world’s largest specialty nursing organiza-

tion with more than 76,000 members. Founded in 1969,

the Association now has more than 270 chapters world-

wide and is working toward a healthcare system driven

by patient’s needs where critical care professionals make

their optimal contribution.

The Hospice Nurses Association (aNA) was founded in

1986 and is a non-profit professional association. The

HNA is an international professional association with a

mission of promoting excellence in hospice nursing. The

HNA is the nation’s largest hospice nursing association

and it is governed by an all nurse board of directors.

The Oncology Nurses Society (ONS), incorporated in

1975, is a national organization of more than 25,000

registered nurses specializing in cancer and dedicated to

excellence in patient care, teaching, research and educa-

tion in the field of oncology. The ONS has 185 local

chapters that provide community networks for education

and peer support. Oncology nurses are at the forefront

of promoting quality of life as an essential component

of cancer care.

The American Osteopathic Association (AOA), celebrat-

ing its centennial in 1997, represents the nation’s 40,000

osteopathic (D.O.s). The AOA is organized to advance

the philosophy and practice of osteopathic medicine by

promoting excellence in education, research, and the de-

livery of quality and cost-effective health care in a distinct,

unified profession.

The American Psychiatric Association (APA), with ap-

proximately 42,000 members, is the nation’s leading

organization of physicians specializing in psychiatry. The

APA follows the ethics standards of the American Med-

ical Association. Physician-assisted suicide inevitably

presents issues concerning the assessment of patient com-

petence, the determination of voluntariness, and the diag-

nosis and treatment of depression or other mental illness

afflicting patients who may request assistance for suicide.

As doctors who would be called upon to play a critical

role in such matters, the APA’s members have a strong

interest in this case.

The American Academy of Hospice and Palliative Medi-

cine (AAHPM), originally organized as the Academy of

Hospice Physicians in 1988, was established to bring

together physicians interested and/or involved in the

hospice/palliative care approach to patient care and com-

mitted to improvement of care for the dying. The

AAHPM is the only such organization in the United

States that offers support to physicians dedicated to the

advancement of hospice/palliative medicine, its practice,

research and education. Its 1,500 member physicians

represent nearly all medical specialties.

The American Academy of Pain Management was incor-

porated in 1988 as a voluntary, not-for-profit organization

for the purpose of credentialing multidisciplinary pain

practitioners, and to further the practice of pain manage-

ment through the development of standards, education,

and advocacy in the field of pain management. The

Academy's Board of Advisors are prominent individuals

in their respective disciplines and all are interested in

furthering our knowledge and management of pain com-

plaints. The intent of the Academy is to be inclusionary,

not restrictive to any specialty, and the goal of the Acad-

emy is to bring together the many professionals who work

with patients in pain and to assist in the creation of

quality services for those individuals.

The American Academy of Pain Medicine is a medical

specialty society of 900 physicians who specialize in the

prevention, evaluation, diagnosis, treatment and rehabili-

tation of painful disorders. The pain physician serves

as a consultant to other physicians but is often the prin-

cipal treating physician and may provide care at various

levels, such as direct treatment, prescribing medication

prescribing rehabilitative services, performing pain re-

lieving procedures, counseling of patients and families

direction of a multidisciplinary team, coordination of care

with other health care providers and consultative services

to public and private agencies pursuant to optimal health

care delivery to the patient suffering from i

disorder. os oe

The American Academy of Orthopaedic Surgeons is a not-

for-profit organization that represents over 17.000 mem-

bers. The Academy provides educational programs for

orthopaedic surgeons, allied health professionals, and the

public. The Academy is an advocate for improved patient

care.

The American Academy of Physical Medicine and Reha-

bilitation is a national medical specialty society represent-

ing more than 5,000 physicians who specialize in physical

medicine and rehabilitation (physiatry), the branch of

medicine emphasizing the prevention, diagnosis and treat-

ment of disorders that may produce temporary or per-

manent impairment. Physiatry provides integrated carc

in the treatment of all neurologic and musculoskeletal

disabilities from traumatic brain injury to lower back

pain. The specialty focuses on the restoration of function

to people with problems ranging from simple physical

mobility issues to those with complex cognitive involve-

ment.

The Society of Critical Care Medicine (SCCM) is the

premier professional international organization devoted °

exclusively to the advancement of multidisciplinary crit-

ical care through excellence in patient care, education,

research and advocacy. The nearly 9,000 members of

SCCM—the intensivists, nurses and allied health profes-

sionals involved in the care of the critically ill and injured

—blend their knowledge, skill, and expertise into a coordi-

nated effort to achieve the best possible outcome for the

patient.

The American Academy of Neurology is a non-profit or-

ganization of approximately 14,000 neurologists who prac-

tice throughout the United States and beyond. The Acad-

emy strives to serve the broad educational needs of its

members; to encourage the highest standards of clinical

care, education, and research in the field of neurology;

and to advance the specialty of neurology and the well-

being of those served by it. The Academy has taken a

leadership role in developing substantive and procedural

guidelines for patient care and decision-making in such

circumstances as persistent vegetative state, advanced

dementia, profound and irreversible paralysis (“locked-

in syndrome”), and anencephaly.

The American Neurological Association was founded in

1875 and today represents over 1,100 academic

neurologists.

The American Society of Anesthesiologists was founded in

1905 in New York and currently has more than 34,000

members. It is a scientific and educational association of

anesthesiologists that was organized to advance the prac-

tice of anesthesiology and to improve the quality of care

of the anesthetized patient. It is the largest organization

of anesthesiologists in the world.

The American Society of Clinical Pathologists (ASCP) is

a non-profit medical specialty society organized for educa-

tional and scientific purposes. The 75,000 members of the

ASCP include board certified pathologists, other physi-

cians, clinical scientists, and certified technologists and

technicians. These professionals recognize the Society as

the principal source of continuing education in pathology

and as the leading organization for the certification of

laboratory personnel. ASCP’s certifying board registers

more than 150,000 laboratory professionals annually.

The College of American Pathologists (CAP) is a medical

society serving more than 15,000 physician members and

the laboratory community throughout the world. Incorp-

orated in 1947, the College is a not-for-profit organiza-

tion. CAP is the world’s largest association composed ex-

clusively of pathologists and is widely considered to be the

leader in laboratory quality assurance. The CAP is an ad-

vocate for high quality and cost-effective patient care. The

mission of the College is to represent the interests of pa-

tients, the public and pathologists by fostering excellence in

the practice of pathology worldwide.

The American Society of Abdominal Surgeons (ASAS),

founded in 1959, is a private, voluntary, non-profit organi-

zation of physicians. Its mission is to develop a strong

continuing surgical education program for the unique spe-

cialty of abdominal surgery. The 4,000 members of the

ASAS practice in all states, Canada, and Mexico.

The American Association of Clinical Endocrinologists

(AACE) is an international medical association devoted

to the field of clinical endocrinology. Its more than 2,500

members are physicians with special education, training

and interest in the practice of endocrinology. AACE mem-

bers are clinicians and educators in areas such as diabetes,

thyroid illnesses, lipid profiles, reproductive disorders,

obesity, and nutrition.

The California Medical Association (CMA) is a non-

profit, incorporated professional association of approxi-

mately 33,000 physicians practicing in the State of Cali-

fornia. The CMA is the largest state medical association

in the country, and the membership includes most Cali-

fornia physicians engaged in the private practice of medi-

cine, in all specialties. CMA’s primary purposes are“...

to promote the science and art of medicine, the care and

well-being of patients, the protection of public health, and

the betterment of the medical profession.” CMA and its

members share the objective of promoting high quality,

cost-effective health care for the people of California.

The Medical Society of the State of New York was or-

ganized in 1807 and is incorporated and operated under

the state’s Not-for-Profit Corporation Law. The Society

has approximately 27,000 member physicians, represent-

ing physicians in all specialties. The purposes of the Medi-

cal Society include: “To enhance the delivery of medical

care of high quality to all people in the most economical

manner, and to act to promote and maintain high stand-

ards in medical education and in the practice of medicine

in an effort to ensure that quality medical care is available

to the public.”

The Medical Association of the State of Alabama is a

non-profit i association of licensed physicians

representing 5,600 members in the State. The Association

was founded in 1873 and it is the premiere medical pro-

fessional association in the State of Alabama.

The Arkansas Medical Society organized in 1875, is a

non-profit, professional organization representing 3,857

licensed physicians in the State of Arkansas.

The Medical Association of Georgia, formed in 1849, is

a non-profit professional association of approximately

7,500 licensed physicians who provide patient care in all

aspects of medical practice in the State of Georgia.

The Mlinois State Medical Society is a non-profit profes-

sional association of licensed physicians, residents and

medical students, founded in 1840, and representing more

than 18,000 members in the State of Lllinois.

The Indiana State Medical Association is a non-profit,

professional association of licensed physicians founded in

1849, and representing 7,200 physicians in all areas of

medical practice in the State.

The Towa Medical Society is a non-profit, professional

association of licensed physicians founded in 1860, and

representing 4,000 physicians in all areas of medical prac-

tice in the State.

The Louisaina State Medical Society, founded in 1878

and representing 6,340 physicians and medical students in

Louisiana, is a non-profit, tax-exempt professional associa-

tion. The Louisiana State Medical Society provides leader-

ship for the advancement of the health of the people of

Louisiana and is the premier advocate in Louisiana for

patients and physicians.

The Massachusetts Medical Society is the oldest, continu-

ous non-profit, professional medical association in the

United States. Founded in 1781, it represents approxi-

mately 16,000 members in the State.

The Mississippi State Medical Association is a private,

voluntary, non-profit organization, which was founded in

1856 to promote the extension of medical knowledge, the

advancement of medical science, the elevation of the stand-

ard of medical education, the -ractment of just medical

laws and the improvement of pw lic health. The Associ-

ation’s membership consists of approximately 3,000 phy-

sicians licensed to practice medicine in the State of

Mississippi.

The Missouri State Medical Association is a non-profit

professional association of physicians licensed to practice

medicine in Missouri and students training in the state’s

accredited medical schools. The Missouri State Medical

Association was founded in 1850 and currently represents

and serves approximately 6,300 members.

The Montana Medical Association is a non-profit organi-

zation comprised of physician members. The Association

was chartered in 1878 and represents 960 licensed phy-

sicians in the State of Montana.

The Nebraska Medical Association is a non-profit, pro-

fessional association of licensed physicians founded in

1868, and representing 1,952 members in the State.

The Medical Society of New Jersey is the nation’s first

medical society, founded in 1766. With more than 9,500

physician members, the Society is the State’s leading voice

in the health care field. The Society’s mission is to promote

the quality of New Jersey health care and health services

for all of the citizens of the state through leadership and

assistance to its physician members.

The New Mexico Medical Society is a non-profit, profes-

sional association of licensed physicians founded over 100

years ago, and representing 2,800 members in the State.

The North Carolina Medical Society is a non-profit, pro-

fessional association which represents physicians in North

Carolina and has approximately 9,000 members. The So-

ciety was incorporated by an Act of the North Carolina

General Assembly in 1858.

The Ohio State Medical Association (OSMA) is a non-

profit professional association of approximately 16,000

physicians, medical residents and medical students.

OSMA’s membership includes physicians in all specialties

engaged in the private practice of medicine in the State of

Ohio. OSMA’s purposes are to: improve public health

through education, encourage interchange of ideas among

oa OF ode en Ge

tice requiring members to adhere to the

pon / concepts of

medical students and medical residents seeking licensure.

The Texas Medical Association is a private, voluntary,

non-profit organization of physicians founded in 1853 to

serve the people of Texas in matters of medical care, pre-

vention and cure of disease, and the improvement of public

health. It has aproximately 34,000 members represent-

ing 84% of all licensed physicians practicing in Texas.

The Medical Society of the State of Virginia is a not-for-

profit Professional association of over 6,500 member

physicians representing every medical specialty and pro-

doctor-patient relationship; promote better health a

health care for all Virginians; support the discovery and

dissemination of new knowledge of human death and dis-

ease; and in all these things to articulate the position of

organized medicine, consistent with the highest standards

of the medical profession.

10a

The West Virginia Medical Association, founded in 1867,

is a non-profit professional Association of licensed phy-

sicians and represents 2,100 members in the State.

Forces

The Society of Medical Consultants to the Armed

was formed in 1946. The goals of the society include: as-

sisting in the development and maintenance of the highest

standards of medical practice in the Armed Forces; and

providing advice and assistance to the Surgeons General

on problems of professional importance in the Armed

Forces.

The American Institute of Life-Threatening Iliness and

Loss, a division of the Foundation of Thanatology which

was incorporated in 1967 in the State of New York, is

dedicated to promoting vastly improved psychosocial and

medical care for patients critically ill or dying from

(among multiple diseases) cancer, heart disease, AIDS,

stroke, end stage renal disease, and emphysema. A major

emphasis of the Foundation is on medical education and

quality of life studies. Over the past 25 years, the Founda-

tion has held over 115 national symposia and published

over 115 related books.

The National Hispanic Council on Aging is a private or-

ganization that works to promote the well-being of older

Hispanics. It was founded in 1980, and there are approxi-

mately 5,000 members throughout the United States,

Puerto Rico, and Mexico.

lla

APPENDIX B

OPINIONS OF THE COUNCIL ON ETHICAL

AND JUDICIAL AFFAIRS

AMERICAN MEDICAL ASSOCIATION

Opinion 2.211—Physician Assisted Suicide. Physician-

assisted suicide occurs when a physician facilitates a

patient's death by providing the necessary means and/or

information to enable the patient to perform the life-

ending act (e.g., the physician provides sleeping pills

and information about the lethal dose, while aware thc

the patient may commit suicide ).

It is understandable, though tragic, that some patients in

extreme duress, such as those suffering from a terminal,

painful, debilitating illness, may come to decide that

death is preferable to life. However, allowing physicians

to participate in assisted suicide would cause more harm

than good. Physician assisted suic\Jc is fundamentally

incompatible with the physician's role as healer, would be

difficult or impossible to control, and would pose serious

societal risks.

Instead of participating in assisted suicide, physicians

must aggressively respond to the needs of patients at the

end of life. Patients should not be abandoned once it

is determined that cure is impossible. Multidisciplinary

interventions should be sought including specialty con-

sultation, hospice care, pastoral support, family counsel-

ing, and other modalities. Patients near the end of life

must continue to receive emotional support, comfort care,

adequate pain control, respect for patient autonomy, and

good communication. Issued June 1994 based on the

reports “Decisions Near the End of Life,” issued June

1991, and “Physician-Assisted Suicide,” issued December

1993; Updated June 1996. (I, IV)

Opinion 2.20—Withholding or Withdrawing Life-Sustain-

ing Medical Treatment. The social commitment of the

12a

physician is to sustain life and relieve suffering. Where

the performance of one duty conflicts with the other, the

preferences of the patient should prevail. The principle

of patient autonomy requires that physicians respect the

decision to forgo life-sustaining treatment of a patient

who possesses decisionmaking capacity. Life-sustaining

treatment is any treatment that serves to prolong life

without reversing the underlying medical condition. Life-

sustaining treatment may include, but is not limited to,

mechanical ventilation, renal dialysis, chemotherapy, anti-

biotics, and artificial nutrition and hydration.

There is no ethical distinction between withdrawing and

withholding life-sustaining treatment.

A competent, adult patient may, in advance, formulate

and provide a valid consent to the withholding or with-

drawal of life-support systems in the event that injury

or illness renders that individual incompetent to make such

a decision. A patient may also appoint a surrogate

decisionmaker in accordance with state law.

If the patient receiving life-sustaining treatment is incom-

petent, a surrogate decisionmaker should be identified.

Without an advance directive that designates a proxy,

the patient’s family should become the surrogate decision-

maker. Family includes persons with whom the patient

is closely associated. In the case when there is no person

closely associated with the patient, but there are persons

who both care about the patient and have sufficient rele-

vant knowledge of the patient, such persons may be appro-

priate surrogates. Physicians should provide all relevant

medical information and explain to surrogate decision-

makers that decisions regarding withholding or withdraw-

ing life-sustaining treatment should be based on substi-

tuted judgment (what the patient would have decided)

when there is evidence of the patient’s preferences and

values. In making a substituted judgment, decisionmakers

may consider the patient’s advance directive (if any);

l3a

the patient’s values about life and the way it should be

lived; and the patient's attitudes towards sickness, suffer-

ing, medical procedures, and death. If there is not ade-

quate evidence of the incompetent patient’s preferences

and values, the decision should be based on the best inter-

ests of the patient (what outcome would most likely

promote the patient’s well-being).

Though the surrogate’s decision for the incompetent pa-

tient should always be accepted by the physician, Avs

are four situations that may require either institutional

or judicial review and/or intervention in the decision-

making process: (a) there is no available family member

willing to be the patient’s surrogate decisionmaker, (b)

there is a dispute amung family members and there is no

decisionmaker designated in an advance directive, (c)

a health provider believes that the family’s decision is

clearly not what the patient would have decided if com-

petent, and (d) a health care provider believes that the

decision is not a decision that could reasonably be judged

to be in the patient’s best interests. When there are dis-

putes among family members or between family health

care providers, the use of ethics committees specifically

designed to facilitate sound decisionmaking is recom-

mended before resorting to the courts.

When a permanently unconscious patient was never com-

petent or had not left any evidence of previous prefer-

ences or values, since there is no objective way to ascer-

tain the best interests of the patient, the surrogate’s deci-

sion should not be chalienged as long as the decision

is based on the decisionmaker’s true concern for what

would be best for the patient.

Physicians have an obligation to relieve pai

ion pain and suffer-

ing and to promote the dignity and autonomy of dying

patients in their care. This includes providing palliative

treatment even though it may foreseeably hasten death.

l4a

Even if the patient is not terminally ill or permanently

unconscious, it is not unethical to discontinue all means

of life-sustaining medical treatment in accordance with a

proper substituted judgment or best interests analysis.

Issued March 1981 (Opinion 2.11: Terminal Illness)

and December 1984 (Opinion 2.19: Withholding or

Withdrawing Life-Prolonging Medical Treatment: Patient's

Preferences). Updated June 1994 based on the reports

“Decisions Near the End of Life” and “Decisions to Forgo

Life-Sustaining Treatment for Incompetent Patient,” both

issued June 1991; and Updated June 1996. (1, III,

IV, V)

Opinion 2.22—Do-Not-Resuscitate Orders. Efforts should

be made to resuscitate patients who suffer cardiac or

respiratory arrest except when circumstances indicate that

cardiopulmonary resuscitation (CPR) would be inappro-

priate or not in accord with the desires or best interests

of the patient.

Patients at risk of cardiac or respiratory failure should

be encouraged to express in advance their preferences

regarding the use of CPR and this should be documented

in the patient’s medical record. These discussions should

include a description of the procedures encompassed by

CPR and, when possible, should occur in an outpatient

setting when general treatment preferences are discussed,

or as early as possible during hospitalization. The phy-

sician has an ethical obligation to honor the resuscitation

preferences expressed by the patient. Physicians should

not permit their personal value judgments about quality

of life to obstruct the implementation of a patient's pref-

erences regarding the use of CPR.

If a patient is incapable of rendering a decision regarding

the use of CPR, a decision may be made by a surrogate

decisionmaker, based upon the previously expressed pref-

erences of the patient or, if such preferences are unknown,

in accordance with the patient’s best interests.

15a

If, in the judgment of the attending physician, it would

be inappropriate to pursue CPR, the attending physician

may enter a do-not-resuscitate (DNR) order into the

patient's record. Resuscitative efforts should be consid-

ered inappropriate by the attending physician only if

they cannot be expected either to restore cardiac or respi-

ratory function to the patient or to meet established

ethical criteria, as defined in the Principles of Medical

Ethics and Opinions 2.03 and 2.095. When there is ade-

quate time to do so, the physician must first inform the

patient, or the incompetent patient's surrogate, of the

content of the DNR order, as well as the basis for its

implementation. The physician also should be prepared

to discuss. appropriate alternatives, such as obtaining a

second opinion (e.g., consulting a bioethics committee)

or arranging for transfer of care to another physician.

DNR orders, as well as the basis for their implementation,

should be entered by the attending physician i

tient’s medical record. Peaerer me ee

DNR orders only preclude resuscitative efforts in the event

of cardiopulmonary arrest and should not influence other

therapeutic interventions that may be appropriate for the

patient. Issued March 1992 based on the report “Guide-

lines for the Appropriate Use of Do-Not-Resuscitate

a: issued December 1990. Updated June 1994. (I,

Opinion 2.035—Futile Care. Physicians are not ethically

obligated to deliver care that, in their best professional

judgment, will not have a reasonable chance of benefiting

their patients. Patients should not be given treatments

simply because they demand them. Denial of treatment

should be justified by reliance on openly stated ethical

principles and acceptable standards of care, as defined in

opinions 2.03 and 2.095, not on the concept of “futility,”

pg cannot be meaningfully defined. Issued June 1994

1, IV) ,

16a

Opinion 2.21—Euthanasia. Euthanasia is the administra-

tion of a lethal agent by another person to a patient for

the purpose of relieving the patient’s intolerable and in-

curable suffering.

It is understandable, though tragic, that some patients

in extreme duress—such as those suffering from a ter-

minal, painful, debilitating illness—may come to decide

that death is preferable to life. However, permitting phy-

sicians to engage in euthanasia would ultimately cause

more harm than good. Euthanasia is fundamentally in-

compatible with the physician’s role as healer, would be

difficult or impossible to control, and would pose serious

societal risks.

The involvement of physicians in euthanasia heightens

the significance of its ethical prohibition. The physician

who performs euthanasia assumes unique responsibility for

the act of ending the patient’s life. Euthanasia could also

readily be extended to incompetent patients and other

vulnerable populations.

Instead of engaging in euthanasia, physicians must aggres-

sively respond to the needs of patients at the end of life.

Patients should not be abandoned once it is determined

that cure is impossible. Patients near the end of life must

continue to receive emotional support, comfort care, ade-

quate pain control, respect for patient autonomy, and

good communication. Issued June 1994 based on the

report “Decisions Near the End of Life,” issued June

1991; Updated June 1996. (I, IV)

Opinion 2.06—Capital Punishment. An _ individual's

opinion on capital punishment is the personal moral deci-

sion of the individual. A physician, as a member of a

profession dedicated to preserving life when there is hope

of doing so, should not be a participant in a legally

authorized execution. Physician participation in execu-

tion is defined generally as actions which would fall into

17a

one or more of the following categories: (1) an action

which would directly cause the death of the condemned;

(2) an action which would assist, supervise, or contribute

to the ability of another individual to directly cause the

death of the condemned; (3) an action which could auto-

matically cause an execution to be carried out on a con-

demned prisoner.

Physician participation in an execution includes, but is

pe to, mo tite. actions: prescribing or ad-

ministering tranquilizers and other c ic

and medications that are part of the Se oe

monitoring vital signs on site or remotely (including

monitoring electrocardiograms); attending or observing

an execution as a physician; and rendering of technical

advice regarding execution.

In the case where the method of execution is lethal injec-

tion, the following actions by the physician would also

constitute physician participation in execution: selecting

injection ‘Sites; Starting intravenous lines as a port for a

lethal injection device; prescribing, preparing, adminis-

tering, or supervising injection drugs or their doses or

types; inspecting, testing, or maintaining lethal injection

devices; and consulting with or supervising lethal injection

personnel.

The following actions do not constitute physician Partici-

pation in execution: (1) testifying as to medical diag-

noses as they relate to competence to stand trial, testifying

as to relevant medical evidence during trial, testifying as

to medical aspects of aggravating or mitigating circum-

stances during the penalty phase of a Capital case, or

testifying to the medical diagnoses as they relate to the

legal assessment of competence for execution; (2) certify-

ing death, provided that the condemned has been declared

dead by another person; (3) witnessing an execution in

a totally nonprofessional capacity; (4) witnessing an ex-

ecution at the specific voluntary request of the condemned

18a

person, provided that the physician observes the execu-

tion in a nonprofessional capacity; and (5) relieving the

acute suffering of a condemned person while awaiting

execution, including providing tranquilizers at the spe-

cific voluntary request of the condemned person to help

relieve pain or anxiety in anticipation of the execution.

When a condemned prisoner has been declared incom-

petent to be executed, physicians should not treat the

prisoner to restore competence unless a commutation

order is issued. However, if the incompetent prisoner is

undergoing extreme suffering as a result of psychosis or

any other illness, medical intervention intended to miti-

gate the level of suffering is ethically permissible. Pro-

vision of medical testimony in the reevaluation of the

prisoner's legal competence to be executed should be pro-

vided by an independent physician examiner. A physi-

cian cannot be compelled to provide medical testimony

as it relates to legal competence for execution if it is con-

trary to the physician’s personal beliefs.

Organ donation by condemned prisoners is permissible

only if (1) the decision to donate was made before the

prisoner’s conviction, (2) the donated tissue is harvested

after the prisoner has been pronounced dead and the body

removed from the death chamber, and (3) physicians do

not provide advice on modifying the method of execution

for any individual to facilitate donation. Issued July

1980. Updated June 1994 based on the report “Physi-

cian Participation in Capital Punishment,” issued Decem-

ber 1992 (JAMA. 1993; 270: 365-368), and updated

June 1996 based on the report “Physician Participation in

Capital Punishment: Evaluations of Prisoner Competence

to be Executed; Treatment to Restore Competence to be

Executed,” issued in June 1995. (1)

19a

APPENDIX C

AMERICAN NURSES ASSOCIATION

CODE FOR NURSES WITH INTERPRETIVE

STATEMENTS

1.1 Respect for Human Dignity

* * * Clients have the moral right to determine what

will be done with their own person; to be given accurate

information, and all the information necessary for making

informed judgments; to be assisted with weighing the

benefits and burdens of options in their treatment; to

accept, refuse, or terminate treatment without coercion;

and to be given necessary emotional support.

* * * *

POSITION STATEMENT ON ASSISTED SUICIDE

SUMMARY: The American Nurses Association (ANA)

believes that the nurse should not participate in assisted

suicide. Such an act is in violation of the Code for

Nurses with Interpretive Statements (Code for Nurses)

and the ethical traditions of the profession. Nurses, indi-

vidually and collectively, have an obligation to provide

comprehensive and compassionate end-of-life care which

imcludes the promotion of comfort and the relief of pain,

and at times, foregoing life-sustaining treatments.

* * * *

POSITION STATEMENT ON

PROMOTION OF COMFORT AND RELIEF OF

PAIN IN DYING PATIENTS

Summary: The American Nurses Association (ANA) be-

lieves that the promotion of comfort and aggressive efforts

to relieve pain and other symptoms in dying patients are

20a

obligations of the nurse. Nurses should not hesitate to use

full and effective doses of pain medication for the proper

management of pain in the dying patient. The increasing

titration of medication to achieve adequate symptom con-

trol, even at the expense of life, thus hastening death

secondarily, is ethically justified.

* * * *

POSITION STATEMENT ON

ACTIVE EUTHANASIA

SUMMARY: The American Nurses Association (ANA)

believes that the nurse should not participate in active

euthanasia because such an act is in direct violation of

the Code for Nurses with Interpretive Statements (Code

for Nurses), the ethical traditions and goals of the pro-

fession, and its covenant with society. Nurses have an

obligation to provide timely, humane, comprehensive and

compassionate end-of-life care.

* * * *

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.