Amicus Curiae Brief — Washington v. Glucksberg

\32 Supreme Court, U.S.

No. 96-110 “f Bes 2.

1996

IN THE CLERK

Supreme Court of the Unit

OCTOBER TERM, 1996

STATE OF WASHINGTON and CHRISTINE O. GREGORIE,

Attorney General of the State of Washington,

Petitioners,

Vv.

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

THOMAS A. PRESTON, M.D., and PETER SH/‘'!T, M.D. PH.D...

Respondents.

On Writ of Certiorari to the

United States Court of Appeals for the Ninth Circuit

BRIEF AMICUS CURIAE OF THE

NATIONAL RIGHT TO LIFE COMMITTEE, INC.

IN SUPPORT OF PETITIONERS

James Bopp, Jr.

Counsel of Record

Richard E. Coleson

Bopp, COLESON & BOSTROM

401 Ohio Street

P.O. Box 8100

Terre Haute, IN 47808-8100

Telephone (812) 232-2434

Counsel for Amici Curiae

November 12, 1996

IS

QUESTIONS DEALT WITH HEREIN

The issue in this case is whether there is a constitutional right

to commit suicide and, if so, whether it includes a right to

assistance.

The sub-issues dealt with herein are:

1. What principles established by this Court govern the

formulation of proposed fundamental rights to be

measured for fundamentality against the history and

tradition of our Nation?

. Under these principles, what is the proper formulation

of the proposed fundamental right in this case?

. Measuring the properly-formulated, proposed funda-

mental right against the history and tradition of our

Nation, does a fundamental right exist which governs

the decision in this case?

. Does this Court’s abortion or refusal of treatment

jurisprudence require it to proclaim a constitutional

right to assisted suicide?

QUESTIONS DEALT WITH HEREIN

TABLE OF CONTENTS

TABLE OF CONTENTS

TABLE OF AUTIOORSEGES 2. cc eeccvecssveneue

INTEREST OF AMICI CURIAE

SUMMARY OF THE ARGUMENT

I.

AN ISSUE TESTED AS A FUNDAMENTAL RIGHT

MUST BE FRAMED IN A CONCRETE, FACT-SENSI-

TIVE MANNER BEFORE BEING MEASURED OBJEC-

TIVELY AGAINST THE HISTORY AND TRADITION

oF Gum BOATODNS 2. wc eects tte ene

A. In Framing an Issue to be Tested as a Funda-

mental Right, the Issue Must Be Framed in a

Concrete and Fact-Sensitive Manner, i.e., “Is

There a Fundamental Right to Commit Suicide

and, if so, Does It Include a Right to Assis-

[el ree

B. The Test for Constitutionality of a Statute Must

Be Objective and Historically-Anchored..... .

C. The Analysis of Planned Parenthood of S.E.

Pennsylvania v. Casey Is Inapplicable to Assisted

Suicide cc vcccestee eee ee

1. Casey, an Abortion Case, Dealt with “Poten-

tial Life,” Not Born Persons ..........

2. Casey Relied Heavily on Stare Decisis,

Which Stands Against an Assisted Suicide

_ Pereerere, + UU

D. The Cruzan Case Gives Appropriate Guidance,

Including Recognition of a Compelling Interest in

Protecting Thamagn EBD ow cctv oeneens

UNDER THE APPROPRIATE TEST, THERE IS NO

FUNDAMENTAL RIGHT TO ASSISTED SUICIDE. .... . 20

A. No Constitutional Provision Guarantees a Right

EE ES 21

B. Compelling State Interests in Protecting Innocent

Individual Human Life Overrule Any Asserted

Interest in Assisted Suicide .............. 24

1. An Interest in Preserving Life Outweighs

Any Interest in Assisted Suicide ....... . 24

2. An Interest in Protecting Third Parties Out-

weighs Any Interest in Assisted Suicide ... 26

3. An Interest in Preserving and Maintaining

the Ethical Integrity of the Medical Profes-

sion Outweighs Any Interest in Assisted Sui-

IT die sins 06 e Obie 6.60000 < 26

4. An Interest in Preventing Suicide Outweighs

Any Interest in Assisted Suicide ........ 28

UPL Chak cb gk ecbacceeeceesecs 30

iv

TABLE OF AUTHORITIES

Page(s)

CASES

Baker v. Nelson, 291 Minn. 310, 191 N.W.2d 185 (1971) .. 8

Bowers v. Hardwick, 478 U.S. 186 (1986) . 3, 9-10, 12-13, 23

Collins v. City of Harker Heights, 503 U.S. 115 (1992)... . 3

Compassion in Dying v. State of Washington, 79 F.3d 790

Pe res ro ry re passim

Cruzan v. Director, Missouri Dept. of Health, 497 U.S. 261

SD -¢a es Rees 04a bee oeen 11, 16, 19-21, 23

Furman v. Georgia, 408 U.S. 238 (1971) ............ 22

Griswold v. Connecticut, 381 U.S. 479 (1965) .... 9, 14-15

In re Conroy, 98 N.J. 321, 486 S.2d 1209 (1985) ...... 22

In re L.H.R., 253 Ga. 439; 321 S.E.2d 716, 723 (1984) .. 24

In re Quinlan, 70 N.J. 10, 355 A.2d 647 (1976) ..... 25-27

In re Yetter, 62 Pa. D.&C. 619 (1973) ............. 21

Kevorkian v. Michigan, 115 S. Ct. 1795 (1995) ......... 2

Loving v. Virginia, 388 U.S. 1 (1967)........... 7-8, 14

Michael H. v. Gerald D., 491 U.S. 110 (1989) .... 9, 12-14

Moore v. East Cleveland, 431 U.S. 494 (1977) ...... 12, 23

Palko v. Connecticut, 302 U.S. 319 (1937) ....... 12-15, 23

Paris Adult Theatre I v. Slaton, 413 U.S. 49 (1973) ..... 23

People v. Kevorkian, 447 Mich. 436, 527 N.W.2d 714 | ,

Planned Parenthood of S.E. Pennsylvania v. Casey, 505

FR ee Sere ee eee passim

Planned Parenthood v. Danforth, 428 U.S. 52 (1976) .... 25

v

Poe v. Uliman, 367 U.S. 497 (1961) ............. 14-15

Reno v. Flores, 113 S. Ct. 1439 (1993) .............. 3

Reynolds v. United States, 98 U.S. 145 (1878) ......... 8

Roe v. Wade, 410 U.S. 113 (1973).......... 17-18, 23-24

Snyder v. Massachusetts, 291 U.S. 97 (1934) ..... 2, 12, 13

St. Mary’s Hosp. v. Ramsey, 465 So. 2d 666 (Fla. Dist. Ct.

RE EEN PITT GOS 26

Tune v. Walter Reed Hosp., 602 F. Supp. 1452 (D.D.C.

ee ee at 20-21, 28

Turner v. Safley, 482 U.S. 78 (1987) ............... 8

United States v. Salerno, 481 U.S. 739 (1987)......... 3-4

Webster v. Reproductive Health Services, 492 U.S. 490

Saar Se Ra Re ie ey Gare 6

Baraclough, Bunch, Nelson & Sainsbury, A Hundred Cases

of Suicide: Clinical Aspects, 125 Brit. J. Psych. 355,

ET bi cb 6 dee tes Uwh oak e eae 28

Bopp, /s Assisted Suicide Constitutionally Protected? , 3

Issues in L. & Med. 113 (1987) ............. 20-29

Bopp & Coleson, Webster and the Future of Substantive Due

Process, 28 Duq. L. R. 271, 281-291 (1990) ....... 6-8

Garbesi, The Law of Assisted Suicide, 3 Issues in L. & Med.

TD Cirad deals raw vas 66 ddd ewhe ees 24

Hilgers & Horan, Abortion and Social Justice (1972)... . . 27

Hippocrates, The Medical Works of Hippocrates 9 (trans. J.

Chadwick & W. Mann, 1950)................. 27

Kamisar, The Reasons So Many People Support Physician-

Assisted Suicide — And Why These Reasons Are Not

Convincing, 12 Issues in L. & Med. 113 (1996) ..... 17

vi

Levine, Psychiatry and Ethics (1972) ..............- 27

Marzen, O’Dowd, Crone & Balch, Suicide: A Constitutional

Right?, 25 Duquesne L. Rev. 1 (1985) ...... 19, 23, 28

John S. Mill, On Liberty in 43 Great Books of the Western

ED oe. a ks wen sah alee ae 22, 29

The New York Task Force on Life and the Law, When

Death Is Sought: Assisted Suicide and Euthanasia in the

BieRiesh GRR GT 6 vt twvecoeceséhere cs 24

Robins, The Final Month 12 (1981)... ..........4.4. 28

Ruebenstein, Moses & Lidz, On Attempted Suicide, 79

Arch. Neurol. & Psych. 103 (1958) ............. 28

Scheinin, The Burden of Suicide, Newsweek, Feb. 7, 1983,

OD cca aweihdee (ska eee edeaien 24sd 0d 08 26

Special Issue: A Symposium on Physician Assisted Suicide,

35 Duquesne L. Rev. | (1996) ...........-555. 23

Spindelman, Are the Similarities Between a Woman's Right

to Choose and Abortion and the Alleged Right to As-

sisted Suicide Really Compelling?, 20 U. Mich. J. of L.

Pr CPE, cece ce echoes teebaveseas 16

INTEREST OF AMICI CURIAE'

The National Right to Life Committee, Inc. (“NRLC) is a

nonprofit organization whose purpose is to promote respect for the

worth and dignity of all human life, including the life of persons

until the time of natural death. NRLC is comprised of a Board of

Directors representing 51 state affiliate organizations and about

3,000 local chapters made up of individuals from every race,

denomination, ethnic background, and political belief. It engages

in various political, legislative, legal, and educational activities to

protect and promote the concept of the sanctity of innocent human

life. The members of NRLC have been strong proponents of laws

protecting innocent human life from the time of conception until

the time of natural death. The members of NRLC have actively

opposed the various recent initiatives to overturn statutes barring

assisted suicide. NRLC seeks to advance its interests by addressing

SUMMARY OF THE ARGUMENT

Prior to measuring a proposed fundamental right against the

history and tradition of our Nation — to determine whether it has

been considered a fundamental liberty — the proposed right must

be properly formulated. Failure to properly formulate the proposed

right risks constitutionally illegitimate decisions. To avoid this

problem, this Court has employed certain principles in formulating

ee ee ce Se a aE me ee

ived rule.

As a general rule, the precedents of this Court require that a

proposed right be expressed in a concrete, fact-sensitive manner.

This general rule is comprised of a three-prong consideration.

First, the formulation of a proposed fundamental right should focus

on the activity proposed to be protected by taking into account all

relevant facts. Second, the formulation of a proposed fundamental

right should not be overbroad so as to encompass other activities

which are logically distinct and involve separate considerations.

‘Consents from the parties to filing this brief have been filed with the

Clerk. Amicus curiae expresses its appreciation to Kristian M. Dahl, Esq.

for assistance in writing this brief.

2

Third, the formulation of a proposed fundamental right should

reasonably accommodate all the interests at stake in the case.

Under these principles, established by the precedents of this

Court, the formulation of the proposed fundamental right in this

case must be whether there is a fundamental right to commit

suicide and, if so, whether the right includes assistance in commit-

ting suicide. Other formulations proposed by plaintiffs/respondents

are so overbroad as to encompass numerous other activities never

recognized as lawful or constitutionally protected.

Applying the proper test to a properly framed issue reveals that

there is no recognized constitutional liberty interest in committing

assisted suicide. However, even if there were, there are compelling

interests which override the interest, preventing the recognition of

a fundamental right to have assistance in committing suicide.

I. AN ISSUE TESTED AS A FUNDAMENTAL RIGHT MUST BE

FRAMED IN A CONCRETE, FACT-SENSITIVE MANNER

BEFORE BEING MEASURED OBJECTIVELY AGAINST THE

HISTORY AND TRADITION OF OUR NATION.

The first step in determining whether there is a constitutional

right to assisted suicide is to frame the proposed right in a

concrete, fact-sensitive manner. The proper question herein is a

straightforward one: “Is there a constitutional right for terminally-

ill, competent adults to commit suicide and, if so, whether it

includes a right to assistance?” See People v. Kevorkian, 447

Mich. 436, 476 n.47, 527 N.W.2d 714, 730 n.47 (1994), cert.

denied sub nom. Kevorkian v. Michigan, 115 S. Ct. 1795 (1995).

This topic is treated in subsection 1.A., infra.

Once a concrete formulation of a right proposed for constitu-

tional protection is framed, a neutral, constitutionally legitimate

analysis for evaluating proposed fundamental rights must be used.

The best-reasoned constitutional opinions of this Court have relied

on the historical, objective test for fundamentality, i.e., whether

the proposed right is “so rooted in the traditions and conscience of

our people as to be ranked as fundamental.” Snyder v. Massachu-

3

setts, 291 U.S. 97, 105 (1934). This subject is discussed in

subsection I.B., infra.

A. In Framing an Issue to be Tested as a Fundamental

Right, the Issue Must Be Framed in a Concrete and

Fact-Sensitive Manner, i.e., “Is There a Fundamental

Right to Commit Suicide and, if so, Does It Include

a Right to Assistance?”

In proposing an asserted fundamental right, the issue tested

must be framed in a concrete, fact-sensitive manner. Otherwise,

the framing of the issue can determine an outcome not reachable

by an objective, legitimate analysis. As this Court has stated

recently:

“Substantive due process” analysis must begin with a careful

description of the asserted right, for “[t}he doctrine of judicial

self-restraint requires us to exercise the utmost care whenever

we are asked to break new ground in this field.” Collins /v.

City of Harker Heights], 503 U.S. [115], [125 (1992)] ... ;

see Bowers v. Hardwick, . . . 478 U.S. [186,] 195-95 (1986)]

Reno v. Flores, 113 S. Ct. 1439, 1447 (1993).

The Ninth Circuit did not frame the issue in this case as

whether there is a right to commit suicide and, if so, whether the

right includes a right to assistance, which would be the proper

formulation. Rather, the Ninth Circuit chose this formulation:

“Today we are required to decide whether a person who is

terminally ill has a constitutionally-protected liberty interest in

hastening what might otherwise be a protracted,’ undignified, and

*Although this case purportedly involves an as-applied challenge, the

terminally-il! plaintiffs/respondents all died while the case was in the

district court or on appeal. Thus, this case is more correctly viewed as a

facial challenge which must fail because there are applications of

Washington's assisted suicide prohibition which are unquestionably

constitutional. United States v. Salerno, 481 U.S. 739 (1987). Respon-

(continued...)

4

extremely painful death,” Compassion in Dying v. State of

Washington, 79 F.3d 790, 793 (9th Cir., 1996), including “the

prescribing of medication by a physician for the purpose of

enabling a patient to end his life.” /d. at 802. The Ninth Circuit

combined a multi-conditioned “right to die” with specific conduct,

resulting in the de facto creation of a right to assisted suicide.

Rather than simply and correctly framing the asserted right as a

right to assisted suicide, the Ninth Circuit chose broader, more

amorphous language about hastening death to permit it to reach its

chosen outcome.

In an attempt to justify its finding of a right to assisted suicide,

the Ninth Circuit further broadened its formulation of the asserted

fundamental! right, citing the Casey decision’s supposed privacy

right in matters “involving the most intimate and personal

choices.” /d. at 801 (citing Planned Parenthood of S.E. Pennsylva-

nia v. Casey, 505 U.S. 833, 851 (1992)). The proper question is

not whether individuals have “the right to define one’s own

concept of existence,” or the right to make “intimate and personal

choices . . . central to personal dignity and autonomy,” as the joint

opinion in Casey and the Ninth Circuit have characterized the

privacy right. Casey, 505 U.S. at 851. Neither is the issue whether

there is a “right to die. Compassion in Dying, 79 F.3d at 801.”°

*(...continued)

dents, with assistance from the Ninth Circuit, are attempting to establish

a broadly available regime of assisted suicide and active euthanasia (even

for incompetent persons via substituted judgment) by (1) bypassing the

Salerno rule by attempting to position this case as an as-applied challenge

and then (2) (if « right is declared for the “as applied” group) using that

right as an equal-protection lever to expand the right to both a broader

group and to an active euthanasia right. The principles of Salerno should

govern this transparent effort, which should be rejected. In any event, the

fact-based formulation used by the Ninth Circuit in the passage quoted is

inappropriate given the absence of terminally ill persons as parties in this

case.

*While the Ninth Circuit en banc panel often labels the right tested

(continued. ..)

5

These broad, grand-sounding, generalized efforts to describe

this Court’s privacy jurisprudence could be interpreted to

constitutionalize all sorts of behavior, legal and illegal. It is

noteworthy that these sweeping efforts to summarize the right to

privacy in Casey were given in that case only after a concrete list

of actual, concrete applications of the privacy doctrine. The list

included, the right to make “personal decisions relating to

marriage, procreation, contraception, family relationships, child

rearing, and education.” Casey, 505 U.S. at 851. The Court went

on to give even more specific examples of rights recognized in

these areas. /d. It is these concrete examples which demonstrate

the true content of the privacy right recognized by this Court, not

the abstract formulations which could sweep in both constitution-

ally protected and unprotected activities, and which leave a court

free to add new constitutionally protected activities at will.

Deciding how to properly frame a proposed constitutional right

to be tested to see if it rises to the level of a fundamental right has

been a long-standing problem. A right not properly framed may

sweep too broadly. For example, an attempt to combine the right

to contraception and the right to abortion into a right to control the

makeup of one’s family might seem at face value to make sense.

However, such an overarching right would logically encompass,

inter alia, the right to commit infanticide, a time-honored method

of controlling family size in many cultures, but one traditionally

rejected in our own. Similarly, a right to control the makeup of

one’s family would logically encompass the right to engage in

*(...continued)

as the “right to die,” Compassion in Dying, 79 F.3d at 801, 802, 803, it

attaches so many conditions on this term as to make it an unworkable

statement of the right being tested. Among the conditions are the presence

of adequate safeguards, id. at 821, a limitation to “patients,” id. at 797,

820, or to “terminally ill,” id., “conscious adults,” id. at 817, who must

be “competent adults,” id., and not suffering from “treatable mental

disorders,” id. at 820. At one point the panel speaks of those with

“unmanageable pain and suffering,” id. at 824, although it never limits

the right it proclaims in this supposed facial challenge to such persons.

6

polygamy. Of course, neither infanticide nor polygamy have been

recognized as fundamental rights. What is clear from this illustra-

tion is that this Court has found contraception and abortion to be

fundamental rights, but there is no right to control the makeup of

one’s family. The right is framed too broadly.

Neither has there ever been recognized a right to “define one’s

own concept of existence.” Such efforts to create overarching

rights are an attempt to synthesize the privacy decisions of this

Court. However, using them as the measuring rod for testing

newly proposed rights for fundamentality is plain error.

Because of the problems posed by an overbroad formulation of

a proposed right, this Court has established certain principles,

which may be derived from its opinions, for formulating proposed

rights to be tested for fundamentality. The Michigan Supreme

Court gave thoughtful consideration to the framing of the proposed

right in People v. Kevorkian, 447 Mich. 436, 476 n.47, 527

N.W.2d 714, 730 n.47 (1994), cert. denied sub nom. Kevorkian

v. Michigan, 115 S. Ct. 1795 (1995), a case rejecting a federal

constitutional right to assisted suicide:

{I}t is important to the analysis of substantive due process that

the asserted right be framed in a precise and neutral manner.

This is critical in cases involving end-of-life questions, which

are particularly susceptible to emotion-laden terminology and

___flawed syllogisms. The approach of the United States Supreme

Court in assessing whether a proposed right is “fundamental”

has been to narrow the threshold inquiry by applying three

principles: (1) the focus should be on the specific activity that

proponents argue is protected by the constitution, taking into

account all relevant facts, (2) the formulation should not be so

broad as to encompass activities that are logically distinct and

involve separate considerations, and (3) the formulation should

reasonably accommodate all of the interests at stake. Bopp &

Coleson, Webster and the Future of Substantive Due Process,

28 Dug. L. R. 271, 281-291 (1990). See Webster v. Reproduc-

tive Health Services, 492 U.S. 490 . . . (1989). The question

presented in this case thus is not whether a person has a

7

constitutional right of self-determination, or a right to define

personal existence, or a right to make intimate and personal

choices, or a right not to suffer. Rather, the question that we

must decide is whether the constitution encompasses a right to

commit suicide and, if so, whether it includes a right to

assistance.

As stated by the Michigan Supreme Court, this Court’s

approach has been to frame rights framed in a concrete,

fact-sensitive manner. This requires application of three principles.

Bopp & Coleson, Webster and the Future of Substantive Due

Process, 28 Duquesne L. R. at 284-87 (hereinafter “Substantive

Due Process”).

“First, the formulation of a proposed fundamental right should

focus on the activity proposed to be protected by taking into

account all the relevant facts.” /d. at 284. This requires focus on

the actual activity proposed for constitutional protection, not broad,

abstract descriptions of historically-recognized rights. As noted

above, the broad language of Casey, which the Ninth Circuit

followed, could allow vast numbers of asserted rights to be swept

within the constitutional fortress. The actual level of specificity

must take into account all relevant facts relating to the activity

proposed for constitutional protection. Focusing on the actual,

concrete activity proposed and all relevant facts relating to it will

enable the framing of an issue which is neither too broad nor too

narrow. /d. at 284-85.

Numerous examples abound in Supreme Court jurisprudence.

Consider the example of marriage. This Court has recognized a

constitutional right for a man and woman to marry. Loving v.

Virginia, 388 U.S. 1 (1967). The issue was framed in a concrete

manner focusing on the actual activity proposed for protection,

i.e., Marriage, as opposed to some broad, amorphous right, e.g.,

the right to control the makeup of one’s family. However, because

marriage is a covenant between a man and a woman to join

together in a societally-sanctioned relationship, the fact that the

individuals are of a different race is irrelevant to the formulation

of the right proposed. /d. (miscegenation law struck down on equal

protection and substantive due process grounds). As a result, the

proper balance is struck between concrete focus on the activity and

omitting irrelevant facts by framing the issue in Loving as whether

there is a constitutionally protected right for a man and a woman

to marry. Similarly, the fact that one party to a proposed marriage

is a prisoner is irrelevant to the formulation of the right to marry,

Turner v. Safley, 482 U.S. 78 (1987), but marriage to a person of

the same sex is a highly relevant fact, for it would radically alter

the definition of marriage. See Baker v. Nelson, 291 Minn. 310,

315, 191 N.W.2d 185, 187 (1971) (“[I]n common sense and in a

constitutional sense, there is a clear distinction between a marital

restriction based merely upon race and one based upon the

fundamental difference in sex.”), appeal dismissed, 409 U.S. 810

(1972).

“Second, the formulation of a proposed fundamental right

should not be overbroad so as to encompass other activities which

are logically distinct and involve separate considerations.”

Substantive Due Process at 286. In considering the constitutionality

of a law barring polygamous relationships, it would be overbroad

to frame the issue in terms of a right to marriage, which is

constitutionally protected. Given the context of the case in which

a right to marriage was pronounced, it is evident that the right is

to a monogamous relationship. Loving v. Virginia, 388 U.S. |

(1967). While polygamy may be ranked as fundamental in the

history and tradition of some cultures throughout history, it has not

been so ranked in our Republic. Reynolds v. United States, 98

U.S. 145 (1878) (upholding anti-polygamy laws against constitu-

tional attack).

“Third, the formulation of a proposed fundamental right should

reasonably accommodate all the interests at stake in a case.”

Substantive Due Process at 286. While this prong may seem

somewhat overlapping with the prior parts of the test, it is

designed to guarantee that in eliminating allegedly irrelevant facts

from the formulation no interests of others are pruned away. For

example, in formulating a proposed right to discharge a firearm,

it is logically relevant whether the firearm is being discharged into

another person.

9

Certain decisions of this Court illustrate these principles well.

In the case of Michael H. v. Gerald D., 491 U.S. 110 (1989), this

Court considered the case of a man who allegedly fathered a child

by an adulterous relationship with the wife of another man. The

plurality formulated the proposed right as “the power of the natural

father to assert parental rights over a child born into a woman’s

existing marriage with another man.” /d. at 125. This formulation

demonstrates the above tri-part rule. First, the formulation is

concrete and fact-sensitive, including all relevant facts. Second, the

formulation is not overbroad, so as to encompass other activities

which are logically distinct and involve other considerations.

Third, the formulation does not exclude the interests of all

involved in the situation. The Court correctly did not merely ask

whether natural fathers have constitutional rights involving their

children.

Similarly, the case of Bowers v. Hardwick, 478 U.S. 186

(1986), demonstrates the proper framing of a proposed constitu-

tional right. Bowers involved an appeal from the criminal prosecu-

tion of two male homosexuals arrested by a police officer in

flagrante delicto for violation of a state sodomy law. The Court

framed the issue in a concrete fact-specific manner, including only

relevant facts, and accounting for all interests, deciding whether

there was a right to engage in “consensual homosexual sodomy.”

Id. at 188 n.2. This formulation dealt with the statute as it was

applied in the action before the Court, excluding the irrelevant

detail of whether the activity involved oral or anal genital contact.

The Court’s formulation also excluded nonconsensual and hetero-

sexual sodomy, which were beyond the facts of this case, and any

discussion of third parties, which were not involved in any way.

Framing the issue so as to encompass heterosexual sodomy would

have also involved logically distinct considerations, such as

whether, if a couple were married, the principles undergirding

Griswold v. Connecticut, 381 U.S. 479 (1965) (striking down any

restriction on contraceptives for married couples), would preclude

regulation of heterosexual sodomy.

By contrast, the Bowers dissent chose broad, abstract formula-

tions of the proposed constitutional right which would encompass

10

homosexual activity. For example, Justice Blackmun spoke of “the

right to be let alone,” Bowers, 478 U.S. at 199 (Blackmun, J.,

dissenting) (quotation marks and citation omitted), the right to

make “certain decisions” and do activities in “certain places,” id.

at 204 (emphasis in original), to do things which “form so central

a part of an individual’s life,” id., “the ability independently to

define one’s own identity,” id. at 205 (quotation marks and

citations omitted), “the freedom an individual has to choose the

form and nature of these intensely personal bonds,” id. (emphasis

in original), “the fundamental interest all ina:viduals have in

controlling the nature of their intimate associations with others,”

id. at 206, “the right of an individual to conduct intimate relation-

ships in the intimacy of his or her own home,” id. at 208, and

“the right to differ as to things that touch the heat of the existing

order.” /d. at 211. In addition, three dissenters joined in formulat-

ing the proposed right as “the individual’s right to make certain

unusually important decisions that will affect his own, or his

family’s destiny.” Jd. at 217 (Stevens, J., dissenting).

By framing the issue herein as “the right to die,” the Ninth

Circuit creates a right so broad that it would encompass everything

from refusal of treatment to euthanasia, with assistance by health

care workers, families, and even friends, not just physicians.

Compassion in Dying, 79 F.3d at 819, 825-28, 857. The purported

liberty interest is stated in terms of avoiding pain, yet this

purportedly as-applied challenge is not brought (nor is relief

granted) only for those in intractable pain, and the en banc panel

also suggests a desire to avoid medical bills may allow the interest

in question to prevail. /d. at 826. Additionally, the “right to die”

of the Ninth Circuit would not be limited to mentally competent

people, as duly appointed surrogates would be recognized equally

to the patient himself. /d. Finally, the Ninth Circuit states that

future “right to die” cases could expand to encompass other forms

of life-ending medical assistance, such as the administration of

drugs by a physician, i.e., active euthanasia. /d. at 831. The Ninth

Circuit acknowledges that there is no clear demarcation between

physician-assisted suicide and the administration of deadly drugs.

Id.

The Ninth Circuit decided to label the tested right the “right to

die.” This was done to lump assisted suicide, widely prohibited

and not historically recognized as a right, with more popular and

well-recognized conduct involving end-of-life decisions, such as

disconnecting a brain-dead, comatose patient from a respirator, or

the right to refuse medical treatment recognized in Cruzan v.

Director, Missouri Dept. of Health, 497 U.S. 261 (1990). Simi-

larly, framing the asserted right to assisted suicide as a right to

“hasten” one’s death or to choose the timing and manner of one’s

death is an effort to find support for assisted suicide by lumping it

with treatment refusal and withdrawal law .‘

there is a fundamental right to assisted suicide. Any more general-

ized expression, such as the broad language cited from the Casey

joint opinion or the “right to die” also favored by Respondents and

the Ninth Circuit, is an effort to resolve the issue by framing the

question in a manner permitting the chosen outcome, rather than

by a neutral constitutional analysis.

B. The Test for Constitutionality of a Statute Must Be

Objective and Historically-Anchored.

A necessary corollary to a neutral formulation of a right

proposed for constitutional protection is a neutral method of testiag

whether the proposed right is a fundamental one. Without a

‘The Ninth Circuit appears to make an effort to frame the issue of

this case in a fact-sensitive manner by stating it as follows: “Whether a

person who is terminally ill has a constitutionally -protected | Fourteenth

Amendment due process] liberty interest in determining the time and

manner of one’s own death.” Compassion in Dying at 793. At numerous

other parts in the Ninth Circuit decision, the question changes to “the

right to die,” Compassion in Dying at 802, “hastening one's death for an

important reason,” id. It is noteworthy that the requirement that a

physician assist the suicide is not even essential to the analysis. Writing

for the majority, Judge Reinhardt states that “[I}t is the end and not the

means that defines the liberty interest.” /d. at 801.

12

neutral, constitutionally legitimate analysis for evaluating proposed

fundamental rights, the integrity of the judiciary is undercut and

decisions are without authority. If “the only limits to . . . judicial

intervention become the predilections of those who happen at the

time to be Members of thfe Supreme] Court,” Moore v. East

Cleveland, 431 U.S. 494 (1977), then the very rule of law has

been supplanted by the rule of men.

The decision of the People of the United States in establishing

their governmental Constitution was to adopt a rule of law, not a

rule by men by Platonic guardians in the judiciary or any other

branch of the government. As a result, a court must demonstrate

by carefully reasoned analysis that its opinion is firmly anchored

in the Constitution to be legitimate. Justice White expressed the

danger of unfettered discretion by the judiciary:

The Judiciary, including this Court, is the most vulnerable and

comes nearest to illegitimacy when it deals with judge-made

constitutional law having little or no cognizable roots in the

language or even the design of the Constitution. Realizing that

the present construction of the Due Process Clause represents

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

tion of the Framers ... , the Court should be extremely

reluctant to breathe still further substantive content into the

Due Process Clause... .

Id. at 544 (White, J., dissenting) (quoted in Michael H., 491 U.S.

at 122 (plurality opinion); of. Bowers, 478 U.S. at 194.

Because of the danger of illegitimacy, the best-reasoned

Constitutional opinions of the Supreme Court have relied on an

historical, objective test for fundamentality, i.e., whether the

proposed right is “so rooted in the traditions and conscience of our

people as to be ranked as fundamental.” Snyder v. Massachusetts.

291 U.S. 97, 105 (1934). This historical formulation of the test for

fundamentality was central to the constitutional analysis in the

Bowers case. 478 U.S. at 193-94 (plurality opinion). The Bowers

opinion also made reference to another test, from Palko v.

Connecticut, 302 U.S. 319, 325 (1937), i.e., whether the proposed

fundamental right is “‘implicit in the concept of ordered liberty’

_ =

i3

s{o} that ‘neither liberty nor justice would exist if (they) were

sacrificed.’” Bowers, 478 U.S. at 191-92 (quoting Palko, 302 U.S.

at 325-26). Similarly, in Michael H., Justice Scalia noted the

dangers of illegitimate decisions, Michael H., 491 U.S. at 122, and

the importance of establishing legitimacy with an historical,

objective test for fundamentality. In sum, the two complimentary

tests for fundamentality are whether the proposed right is (1)

implicit in the concept of ordered liberty and/or (2) so rooted in

the traditions and conscience of our people as to be ranked as

fundamental.

Plaintiffs/Respondents will dispute whether these tests govern,

arguing that the Supreme Court has rejected such tests by rejecting

completely any use of a formulary approach to determining what

rights are protected under the Due Process Clause’s liberty

guarantee. Casey, SOS U.S. at 849-850. Although space does not

allow an exhaustive analysis of the Supreme Court's recent debates

with regard to testing proposed constitutional rights for

fundamentality, a brief discussion will put the reference about no

“formula” from Casey in context and show that it does not mean

analysis out the window.

From the earliest ventures of this Court into substantive due

process, the Court has had to deal with what tests would govern

whether a proposed right would be found to be a fundamental

whim of five Justices would not be enough to establish a constitu-

tional right. Some effort had to be made to keep judges from

“roaming at large in the constitutional field.” Griswold v. Connect-

icut, 381 U.S. 479, 502 (Harlan, J., concurring).

The tests were established early in the development of

substantive due process analysis. They were, as noted above: (1)

whether the proposed right is “so rooted in the traditions and

conscience of our people as to be ranked as fundamental.” Snyder,

291 U.S. at 105, or (2) whether proposed fundamental rights are

“implicit in the concept of ordered liberty so that neither liberty

14

‘nor justice would exist if [they] were sacrificed.” Palko, 302 U.S.

at 325-26.

There have been two efforts to refine the test for fundamental

rights. One would have required that no fundamental rights could

be found in the Due Process Clause unless they were enumerated

in the Constitution. This incorporation doctrine was what Justice

Harlan objected to in Griswold, 381 U.S. at 500 (Harlan, J.,

concurring) and in Poe v. Uliman, 367 U.S. 497, 541 (1961)

(Harlan, J., dissenting), when he said that “process has not been

reduced to any formula.” /d. at 542. The Supreme Court has

rejected the incorporation doctrine by expanding the list of

fundamental rights to include rights not expressly listed in the

Constitution.

A second effort to refine the test for fundamental rights was

made by Justice Scalia, with support from Chief Justice Rehnquist,

who argued that in formulating a proposed right to be tested for

fundamentality the Court must use the most specific level at which

a relevant tradition protecting, or denying protection to, the

asserted right can be identified. Michael H. v. Gerald D., 491

U.S. 110, 128 n.6 (1989) (opinion of Scalia, J.). While Justices

O’Connor and Kennedy joined the rest of Scalia’s opinion, they

refused to join this footnote six formulation regarding the specific

level of generality for formulating a proposed fundamental right,

declining to foreclose the unanticipated by the prior imposition of

a single mode of historical analysis. /d. at 132.°

These, then, are the debates which spill into the Casey opinion,

Casey, 505 U.S. at 849-850, and upon which Respondents rely for

the notion that the Court rejects any type of formulary approach to

*The discussion, supra, about the proper framing of an asserted right

takes the debate over this footnote into account and applies even if the

right is not framed at the most specific level for which there is an

historical tradition. However, as noted in the text, concern over cases

such as Loving v. Virginia may be simply resolved by properly framing

the issue. See supra at 7.

15

Clause’s “liberty” guarantee, such as whether the right was

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

“liberty or justice would cease to exist if [it] were sacrificed.”

These tests have not changed and ought not to be changed.

Clearly Respondents misunderstand the debate on the Supreme

Court. A: careful reading of Casey will reveal that the majority of

this Court rejects formulation of proposed rights at only the most

specific level and rejects the notion that only those rights “that

were protected against governmental interference by other rules of

law when the Fourteenth Amendment was ratified” may be found

to have substantive due process protection. Casey, 505 U.S. at

847-48. The Court reiterates the latter point: “Neither the Bill of

Rights nor the specific practices of States at the time of the

adoption of the Fourteenth Amendment marks the outer limits of

the substantive sphere of liberty which the Fourteenth Amendment

protects.” /d. at 848. The Casey majority then proceeded to quote

Justice Harlan’s dissent in Poe v. Ullman for the proposition that

“[djue process has not been reduced to any formula.” Jd. at 848-

49; Poe, 367 U.S. at 542. Justice Harlan’s analysis was adopted

in Griswold, 381 U.S. 487.

What Respondents fail to notice is that in Justice Harlan’s

dissent in Poe, he endorsed the notion that the Court should look

to history in determining whether proposed rights should be

deemed fundamental, i.e., look to “the balance struck by this

country, having regard to what history teaches are the traditions

from which it developed as well as the traditions from which it

broke.” Poe, 367 U.S. at 542. With regard to assisted suicide, the

tradition of our people has been to prohibit it and there is no

significant of departure from that tradition. Likewise, in Griswold

Justice Harlan, while still rejecting the formula of the incorporation

doctrine, Griswold, 381 U.S. at 500-01, at the same time endorsed

the Palko test: “In my view, the proper constitutional inquiry in

this case is whether this Connecticut statute infringes the Due

Process Clause of the Fourteenth Amendment because the enact-

ment violates basic values ‘implicit in the concept of ordered

liberty.” Id. at 500 (citation omitted).

16

In other words, the Justice whom Plaintiffs/Respondents cite

for a rejection of any “formulary” approach specifically embraced

the tradition-of-our-people and implicit-in-ordered-liberty tests

which Respondents would reject as being too formalistic. Nor is

there any evidence that any of the Judges on the Supreme Court,

in Casey or elsewhere, have abandoned these two historical tests.

The debate lies elsewhere. These tests are well-established and

must be applied in this case.

C. The Analysis of Planned Parenthood of S.E. Penn-

sylvania v. Casey /s Inapplicable to Assisted Suicide.

Respondents attempt to establish a constitutional right to

assisted suicide by analogy to the right to abortion, relying on

certain broadly-worded language of the Casey decision, 505 U.S.

833, and the right to refuse medical treatment, as expressed in

Cruzan v. Missouri Dept. of Health, 497 U.S. 261 (1990). The

tenuous analogies to Casey and Cruzan were adopted by the Ninth

Circuit as well. Compassion In Dying, 79 F.3d at 813-16. As

shown below, the “analogy” approach is an inappropriate method-

ology, even if the analogies proposed were sufficiently parallel,

which they are not. Moreover, Casey is inapposite as shown

below, and Cruzan, while somewhat more conceptually related,

actually leads to a different conclusion than the en banc Ninth

Circuit panel reached.

Respondents attempt their analogy by using selective, general

language from the Casey opinion involving “intimate and personal

choices . . . central to personal dignity and autonomy” and “the

right to define one’s own concept of existence.” Compassion In

Dying at 813 (quoting Casey, 505 U.S. at 853). Such a broad,

general framing of constitutional rights is inappropriate, as

discussed in detail supra, because it gives courts absolute discretion

to place new rights within the pale of constitutional protection. For

the present, however, it is important to note how inapposite the

abortion right is to a right to assisted suicide. Two key differences

demonstrate the error of relying on Casey for a right to assisted

suicide. See also, Spindelman, Are the Similarities Between a

Woman's Right to Choose and Abortion and the Alleged Right to

17

Assisted Suicide Really Compelling?, 20 U. Mich. J. of L. Reform

775 (1996); and Kamisar, The Reasons So Many People Support

Physician-Assisted Suicide — And Why These Reasons Are Not

Convincing, 12 Issues in L. & Med. 113 (1996).

1. Casey, an Abortion Case, Dealt with “Potential

Life,” Not Born Persons.

From the time of Roe v. Wade, 410 U.S. 113 (1973), a

woman’s interest in obtaining abortion has been balanced against

what the Court described as the “potentiality of human life.” /d.

at 162. Casey likewise describes the life interest at stake in the

abortion decision as “potential life.” Casey, 505 U.S. at 871. With

regard to life that is only asserted to be “potential,” Roe acknowl-

edged no compelling state interest until viability. At viability,

however, a state’s interest in protecting this “potential” life became

a “compelling” interest, overriding a woman’s right to choose

abortion. Roe, 410 U.S. at 163.

In the context of dealing only with “potential” life, the Casey

joint opinion asserted that the proper mode of balancing was the

undue burden standard. Casey, 505 U.S. at 876. Of course, after

viability the state’s interest in protecting unborn life becomes

compelling and abortion may be proscribed, id. at 869, even

though unborn life remains “potential.” /d. at 871, 876.

If a state’s interest in protecting “potential” life may become

compelling at some point, how much greater must be the state

interest in protecting the human life of born persons. The interest

in protecting this “actual” life would also be compelling and would

be sufficiently powerful to allow the state to criminalize either the

destruction of that life or assisting in the destruction of that life,

just as it may bar the destruction of viable “potential” life.

The state’s compelling interest in protecting life includes

protecting not only the individual from an act of assisted suicide

but society at large. This includes adults subject to undue influ-

ence, young people subject to suicide ideation and influenced by

societal acceptance of suicide, and society at large subject to a

debasing of the value of life and wishing to resist it. Respondents

cannot explain away this critical distinction between the abortion

cases and assisted suicide. As a result, the abortion cases do not

provide authority for a right to assisted suicide.

2. Casey Relied Heavily on Stare Decisis, Which

Stands Against an Assisted Suicide Right.

The Casey case also provides a poor foundation on which to

build other rights because of its heavy reliance on sare decisis t

shore up a foundation badly eroded by constitutional scholarship

and experience living with the Roe formula. The very joint opinion

in which Respondents place such trust contains the following

comment:

On the other side of the equation is the interest of the State in

the protection of potential life. . . . The weight to be given this

State interest, not the strength of the woman’s interest, was the

difficult question faced in Roe. We do not need to say whether

each of us, had we been Members of the Court when the

valuation of the state interest came before it as an original

matter, would have concluded, as the Roe Court did, that its

weight is insufficient to justify a ban on abortions prior to

viability even when it is subject to certain exceptions. The

matter is not before us in the first instance, and coming as it

does after nearly 20 years of litigation in Roe’s wake we are

not satisfied that the immediate question is not the soundness

of Roe’s resolution of the issue, but the precedential force that

must be accorded to its holding.

Casey, 505 U.S. at 871 (joint opinion, not for the Court).

The Justices in the joint opinion made it very clear that their

reaffirmance of Roe was based on their desire to abide by prece-

dent, not on the soundness of Roe’s holding. Thus, the abortion

precedent is not a sound foundation on which to build a whole new

right which has no connection to abortion.®

"The erroneous attempt to connect the two by use of abstract

language from the joint opinion is discussed supra.

er

19

In fact, the strong Casey reliance on stare decisis has an

opposite effect. If Casey stands for stability in the law and respect

for precedents, it stands against the overreaching and judicial

activism Respondents propose in order to create a constitutional

right to assisted suicide where state laws have clearly and

near-universally condemned the practice.

D. The Cruzan Case Gives Appropriate Guidance,

Including Recognition of a Compelling Interest in

Protecting Human Life.

Respondents also rely on the case of Cruzan v. Missouri Dept.

of Health, 497 U.S. 261 (1990). Compassion In Dying, 79 F.3d at

814. Respondents leap from Cruzan’s assumption, for purposes of

the case, that there is a liberty interest (not a fundamental right,

however) in refusing nutrition and hydration, Cruzan, 479 U.S. at

279, to a liberty interest in assisted suicide. /d.

While Cruzan involves a subject conceptually more applicable

to assisted suicide than does the abortion case of Casey, close

examination of Cruzan reveals that it actually leads in a different

direction than Respondents attempt to take it. Cruzan found that

there is an unqualified state interest in protecting individua! human

life, citing the laws against assisting suicide in support of that

interest. Cruzan, 497 U.S. at 280. Therefore, what Cruzan did not

do was to find any fundamental right or liberty interest in commit-

ting suicide. The Court did not even speak of a “right to die,”

referring instead to a “right to refuse treatment” in its discussion

of the line of cases involving decisions to forego treatment. Jd. at

270. Justice Scalia, in his concurring opinion, discussed at length

why there is no constitutional right to suicide or assisted suicide.

Id. at 294-95 (citing Marzen, O’Dowd, Crone & Balch, Suicide:

A Constitutional Right?, 25 Duquesne L. Rev. | (1985)). The

Cruzan decision also demonstrated an analysis for finding protected

liberty interests, which does not involve the springboard of analogy

but involves the careful sort of analysis set forth below, the sort of

analysis which must be applied to the case at bar.

Before turning to the appropriate analysis for testing new

alleged rights for constitutionality, it should be briefly noted that

20

the interest in protecting human life is affirmed in other legal

contexts, in addition to Cruzan. The right to refuse treatment cases

uniformly affirm a state interest in preventing suicide. See, e.g.,

Tune v. Walter Reed Hosp., 602 F. Supp. 1452, 1455 (D.D.C.

1985). In addition, the very criminal law at issue in this case is

evidence of the strong state interest in protecting life and prevent-

ing suicide, for virtually every jurisdiction bars assisted suicide, as

noted by this Court in Cruzan. 505 U.S. at 280. In light of the

affirmation of Cruzan and these cases for a strong state interest in

protecting life and preventing suicide, it is clear that no constitu-

tional right to assisted suicide exists.

Given that neither Casey nor Cruzan establishes a right to

assisted -stricide, a substantive due process analysis must be

conducted to determine whether a right to assisted suicide exists.

The appropriate analysis is based on the objective and histori-

cally-anchored test discussed supra. Respondents have proposed a

“right to assisted suicide” which is without basis in any Constitu-

tional provision. Furthermore, any asserted interest in assisted

suicide is overruled by several well-recognized compelling state

interests in protecting innocent individual human life.

Il. UNDER THE APPROPRIATE TEST, THERE IS NO FUNDA-

MENTAL RIGHT TO ASSISTED SUICIDE.

As described above, the proper analysis for the recognition of

a constitutional right to assisted suicide is whether assisted suicide

is implicit in the concept of ordered liberty and/or so rooted in the

traditions and conscience of our people as to be ranked as funda-

mental. The test is not whether an individual has a “right to define

one’s own concept of existence,” Casey, 505 U.S. at 851, or any

other abstract, generalized formulation that would encompass a

whole range of legal and illegal behavior. The test is also not some

sort of leap by analogy from a right to abortion or to refuse

medical treatment to a right to have another person assist one in

suicide. The U.S. Constitution does not expressly guarantee any

right to commit suicide, so any asserted right must be anchored in

some other express right. The possible and proposed rights are

considered below. See also Bopp, /s Assisted Suicide Constitution-

21

ally Protected?, 3 Issues in L. & Med. 113 (1987) (hereinafter

“Assisted Suicide” (discussing and rejecting the asserted rights

mentioned below as an asserted basis for a right to assisted suicide

at 117-28).

A. No Constitutional Provision Guarantees a Right to

Assisted Suicide.

Respondents have relied in part on the “right to refuse medical

treatment” assumed for purposes of analysis in Cruzan, 497 U.S.

at 279. Compassion In Dying, 79 F.3d 790 at 814. This reliance

fails to make the constitutionally-significant distinction between

ongoing medical treatment and committing physician-assisted

suicide. By basing the analogy on Cruzan and the broad “bodily

integrity” and “defining one’s existence” language of Casey,

discussed supra, a leap is made to asserting a due process right to

assisted suicide. As discussed above, framing a proposed funda-

mental right in such a broad manner is a flawed analysis, and will

certainly lead to a flawed result. Indeed, if the right to define one’s

own existence allows a terminally ill person to have assisted

suicide, why would there also not be such a right for persons not

terminally ill under that same right. Furthermore, unlike suicide,

a refusal of medical treatment may not be motivated by an intent

to die. The patient may be balancing the risks and benefits of

treatment. Jn re Yetter, 62 Pa. D.&C. 619 (1973) (woman refused

biopsy for fear of death in surgery). A procedure with uncertain

promise of sustaining life may be refused if the patient feels the

benefits do not outweigh the burdens, without the specific intent to

die inherent in suicide. See also Assisted Suicide at 120 (discussing

the common law roots of the right to refuse medical treatment in

the concept of battery, which allows rejection of treatment and no

more).

Another flaw in the analogy to Cruzan’s “right to refuse life

sustaining treatment” is that virtually all of the courts have found

this right to refuse life-sustaining treatment have also found a

compelling interest in preventing suicide. See, e.g., Tune v. Walter

Reed Hosp., 602 F. Supp. 1452 (D.D.C. 1985). See also Assisted

Suicide at 119 n.27 (providing an extended list of cases finding a

22

compelling interest in preventing suicide). The New Jersey

Supreme Court put the matter this way in the case of Jn re Conroy,

98 N.J. 321, 486 $.2d 1209 (1985):

[D]eclining life-sustaining medical treatment may not properly

be viewed as an attempt to commit suicide. Refusing medical

intervention merely allows a disease to take its natural course;

if death were eventually to occur, it would be the result,

primarily, of the underlying disease, and not the result of a

self-inflicted injury.

In re Conroy, 98 N.J. at 350, 486 A.2d at 1224 (citations

omitted).

The “right to autonomy” also does not support a right to

assisted suicide. Plaintiffs/Respondents and the Ninth Circuit also

found a due process liberty interest in “hastening one’s own

death.” Compassion In Dying, 79 F.3d at 812. The right to

autonomy, often confused with the right to privacy, was best set

out by John Stuart Mill, who asserted that, “the only purpose for

which power can be rightfully exercised over any member of a

civilized community, against his will, is to prevent harm to

others.” John S. Mill, On Liberty in 43 Great Books of the

Western World 271 (1952). If Mill’s assertion is accepted, a law

may rightly forbid a physician from doing harm to another, i.e.,

killing another or assisting another in killing him- or herself. The

state may also rightly conclude that endorsing suicide in any

situation may cause harm to vulnerable populations, which would

also justify a limitation .i. «itonomy with regard to suicide and

assisted suicide.

Additionally, when the right to autonomy clashes with the right

to life in our constitutional system, the life interest triumphs. This

is so because, as Justice Brennan states it, the right to life is the

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

(1971) (Brennan, J., concurring). Death is the extinguishment of

rights, not the triumph of one right over another. Therefore, any

autonomy right to assisted suicide must yield to the right to life.

See also Assisted Suicide at 125-28 (discussing the autonomy

argument).

23

The right of privacy/ liberty does not encompass a right to

assisted suicide. The Ninth Circuit decision relies heavily upon the

abortion line of cases culminating in Casey, 505 U.S. 833, as

support for the right to assisted suicide. Compassion In Dying, 79

F.3d at 813-814. Although the joint opinion in Casey chose to

speak in terms of a fourteenth amendment liberty, the specific

aspect of liberty in which the court has relied on since Roe, 410

U.S. 113, has been the privacy doctrine. No matter which term is

used, however, the test for a fundamental right remains the same.

The analysis described above explains that the proper formula-

tion of the proposed right in this case is whether there is a

fundamental right to assisted suicide. Then that query must be

submitted to the test of whether a right to assisted suicide is

“deeply rooted in this Nation’s history and tradition,” Bowers, 478

U.S. at 192 (quoting Moore v. East Cleveland, 431 U.S. at 503

(1977) (opinion of Powell, J.), or “‘implicit in the concept of

ordered liberty,’ such that ‘neither liberty nor justice would exist

if [they] were sacrificed.’"” Jd. (quoting Palko, 302 U.S. at

325-26). As the Bowers Court stated, these tests are essential to

“assure itself and the public that announcing rights not readily

identifiable in the Constitution’s text involves more than the

imposition of the Justices’ own choice of values. . . .” /d. at 191.

It is clear that a right to assisted suicide is neither implicit in

the concept of ordered liberty nor deeply rooted in American

history and tradition, for at the time the fourteenth amendment was

ratified twenty-one of the thirty-seven states criminalized assisted

suicide. Marzen, O’Dowd, Crone & Balch, Suicide: A Constitu-

tional Right?, 25 Duquesne L. Rev. at 76. Those states which did

not explicitly recognize assisted suicide as a crime in 1868, did so

within the following fifty years. Jd. at 77-100, 148-242. See also

Special Issue: A Symposium on Physician Assisted Suicide, 35

Duquesne L. Rev. | (1996). In 1973, the U.S. Supreme Court

could characterize the laws against assisted suicide as “constitution-

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

(1973), and in 1990 this Court found there is an unqualified state

interest in protecting individual human life, citing the laws against

assisting suicide in support of that interest. Cruzan, 497 U.S. at

24

280. See also Assisted Suicide at 120-25 (discussing and rejecting

an asserted right to assisted suicide and the privacy doctrine).

B. Compelling State Interests in Protecting Innocent

Individual Human Life Overrule Any Asserted Inter-

est in Assisted Suicide.

Although there is no fundamental right to assisted suicide, even

if there were such a right it would be trumped by the existence of

compelling state interests in preserving life, protecting third

parties, maintaining the ethical integrity of the medical profession

(precluding physician involvement), and in preventing suicide.

These issues are discussed in sequence below. An excellent

resource On ways that a regime of physician assisted suicide would

seriously endanger the vulnerable members of our society is The

New York Task Force on Life and the Law, When Death Is

Sought: Assisted Suicide and Euthanasia in the Medical Context

(1994).

1. An Interest in Preserving Life Outweighs Any

Interest in Assisted Suicide.

Preserving human life is a compelling interest so strong that it

even applies to protect viable unborn humans, which this Court in

Roe deemed to be only “potential life.” Roe, 410 U.S. at 163-64.

Some courts evaluate this interest only in the context of an

individual human, arguing that the interest of the state decreases in

relation to the person’s prognosis. See, e.g., In re L.H.R., 253 Ga.

439; 321 S.E.2d 716, 723 (1984) (“While the state has an interest

in the prolongation of life, the state has no interest in the prolonga-

tion of dying .. . .”). Some advocates of assisted suicide argue

that if a person waives his or her right to life, the state’s interest

evaporates. Garbesi, The Law of Assisted Suicide, 3 Issues in L. &

Med. 93, 107 (1987). It is surely questionable whether one may

waive the right to have rights. Is not the right to life “inalienable?”

However, assuming for the sake of argument that the right to

life is alienable, the state’s interest in life cannot be confined to a

single individual. It includes not only the life of the individual but

the general societal interest in preserving the inherent sanctity of

25

human life. Any concession that one person's life has less value,

whether by reason of age or disability, is to lessen the value of all

life. Moreover such an approach rejects the high constitutional

value of equality.

While assisted suicide rigt ivists urge the ition of

the right for competent adults, there is no constitutionally sound

way to confine the right to adults. Planned Parenthood vy.

Danforth, 428 U.S. 52, 74 (1976), recognized that minors have a

right to exercise fundamentai constitutional rights. Minors would

clearly have a right to assisted suicide if it were found to be a

tional right to suicide or assisted suicide would have the effect of

signalling societal approval of the act, putting many at increased

There is also the problem of how to confine the right to

assisted suicide to competent persons, for numerous cases since /n

re Quinian, 70 NJ. 10, 355 A.2d 647, cert. denied sub nom.

Ninth Circuit acknowledges this likely extension of the assisted

suicide right from the logic of their decision. Compassion in

Dying, 79 F.3d at 823-24. As Judge Reinhardt wrote for the court,

“a decision of a duly appointed surrogate decision maker is for all

legal purposes the decision of the patient himself.” /d. at 832

n.120.

The state has a compelling interest in preserving both individ-

ual lives and the sanctity of human life. This compelling interest

ides any ‘tutional j . liberty, or fend | righ

to assisted suicide. See also Assisted Suicide at 129-32 (discussing

at length the state interests in preserving life).

26

2. An Interest in Protecting Third Parties Out-

weighs Any Interest in Assisted Suicide.

The state also has a compelling interest in protecting third

parties. For example, parents have duties of support to their

to creditors. Of course, in addition to legal debts, there are moral

debts members of society owe to others. If society may prohibit an

individual from escaping his or her legal debts in other ways, why

may a state not do so by prohibiting suicide? The courts have

or absence of minor children who will be affected. See, e.g., St.

Mary’s Hosp. v. Ramsey, 465 So. 2d 666, 668 (Fla. Dist. Ct.

App. 1985) (finding no abandonment of child because primary

naming child as beneficiary). However, third parties may be more

profoundly affected by suicide than by other cases leading to the

death of a parent. One woman wrote about her mother’s suicide:

Suicide is not a normal death. It is tragic beyond the most

shattering experiences, and the ultimate form of abandonment.

There is no fate on which to place the blame. It rests squarely

on the shoulders of the victim and the people left behind, many

of whom spend the rest of their lives wondering if there was

anything they could have done to prevent such a tragedy.

Scheinin, The Burden of Suicide, Newsweek, Feb. 7, 1983, at 13.

Because suicide is a social act, communicating to other people,

the state has a strong interest in protecting innocent parties from

such infliction of distress.

3. An Interest in Preserving and Maintaining the

Ethical Integrity of the Medical Profession

Outweighs Any Interest in Assisted Suicide.

Society also has a compelling interest in opposing physician

—_ in sesleted culcide. hing many assisted suicid

advocates envision. Allowing assisted suicide directly places the

healing profession of medicine into the business of killing. As the

Quinian court observed, the conduct of the medical profession

27

“must, in the ultimate, be responsive not only to the concepts of

medicine but also to the common moral judgments of the commu-

nity at large.” Quinlan, 70 N.J. at 44, 355 A.2d at 665. That

physicians, who are supposed to be healers, must not become

, was thought to be resolved millennia ago with the Hippo-

cratic Oath, which bars giving “deadly medicine to anyone,” and

begins, “First, do no harm.” Hippocrates, The Medical Works of

Hippocrates 9 (trans. J. Chadwick & W. Mann, 1950). The

Hippocratic bar against physician involvement in killing of any sort

is vital, as explained by anthropologist Margaret Mead:

For the first time in our tradition, there was a complete

separation between killing and curing. Throughout the primi-

tive world the doctor and the sorcerer tended to be the same

person. He with the power to kill had the power to cure,

who had power to cure would necessarily also be able to kill.

With the Greeks, the distinction was made clear. One profes-

sion, the followers of Asclepias, were to be dedicated com-

pletely to life under all circumstances, regardless of rank, age,

or intellect the life of a slave, the life of the Emperor, the life

of a foreign man, the life of a defective child... . This is

priceless possession which we cannot afford to tarnish, but

society always is attempting to make the physician into a killer

to kill the defective child at birth, to leave the sleeping pills

beside the bed of the cancer patient. It is the duty of society to

Levine, Psychiatry and Ethics 377 (1972) (personal communica-

tions from Margaret Mead), quoted in Hilgers & Horan, Abortion

and Social Justice 310-11 (1972).

_ Another problem with allowing physicians to assist in suicide

is that physicians would soon feel a legal duty to routinely advise

patients of the suicide option to avoid legal liability. This would

not only have the effect of increasing assisted suicides but would

pyre een ange my “atm to a routine killer. See

Assisted Suicide at 133-35 (discussing the topic of this

subsection at greater length).

4. An Interest in Preventing Suicide Outweighs

Any Interest in Assisted Suicide.

Finally, the states have a highly relevant compelling interest:

the prevention of suicide. Virtually all the courts considering

withdrawal or refusal of treatment cases have recognized this

compelling interest. See, e.g., Tune v. Walter Reed Hosp., 602 F.

Supp. at 1455. See also Assisted Suicide at 136 n.100 (listing

numerous cases which have recognized this interest).

ninety-four percent of persons who have committed suicide are

believed to have suffered from mental disorders. Robins, The Final

Month 12 (1981) (94%); Baraclough, Bunch, Nelson & Sainsbury,

A Hundred Cases of Suicide: Clinical Aspects, 125 Brit. J. Psych.

355, 358 (1974) (93%). Although many persons with mental

disorders will not be capable of rational decisionmaking, Assisted

Suicide at 137 & notes (discussing the effect of certain mental

disorders), they would not ‘ly be judged legally i

tent. For example, the numerous followers of the Rev. Jim Jones

who committed mass suicide in Guyana in 1978 were not likely to

have been declared legally incompetent. See Marzen, O'Dowd,

Crone & Balch, Suicide: A Constitutional Right?, 25 Duquesne L.

Rev. at 142-45. Efforts to restrict suicide to voluntary, competent

adults would certainly sweep in many persons who were possessed

of irresistible psychological predispositions to suicide.

Moreover, many persons who attempt suicide do not simply

wish to die. The suicide attempt may often be an appeal for help,

a blackmail attempt, an effort at escape, an expression of aggres-

sion, or a form of self-punishment. Ruebenstein, Moses & Lidz,

On Attempted Suicide, 79 Arch. Neurol. & Psych. 103 (1958).

Such attempts need to be greeted with intervention, not an offer of

assistance in suicide. If not, a large population which could have

been helped would die. The state has a clear, compelling interest

iM protecting this vulnerable population.

Society also has a compelling interest in resisting manipulated

suicides. Were suicide to become common, persons considered

29

“burdens "on relatives would feel considerable pressure to be

assisted in ceasing to become burdens. This risk, and the risk of

substituted judgment assistance in suicide would extend to persons

in nursing homes, mental institutions, and group homes for persons

with mental and emotional difficulties.

Finally, as John Stuart Mill observed, society has an interest

in the contribution of each member of a society, for “everyone

who receives the protection of society owes a return for the

benefit,” which includes “not injuring the interests of another” and

“bearing his share . . . of the labours and sacrifices incurred for

defending the society or its members. [W]hen a person

disables himself, by concept of purely self-regarding, from the

performance of some definite duty incumbent on him to the public,

he is guilty of a social offense.” John S. Mill, On Liberty in 43

Great Books of the Western World at 302-03, 306. Suicide disables

a person forever of rendering any contribution to society. See also

Assisted Suicide at 135-40 (discussing this subject in greater depth).

30

CONCLUSION

In sum, there is no fundamental right to assisted suicide, and,

even if there were, there are ample compelling interests which

would justify the State of Washington in proscribing assisted

suicide. Vulnerable members of society deserve more from a

culture which desires to consider itself civilized and humane than

assistance or encouragement in the annihilation of all of their rights

by self-destruction.

For the above reasons, your amici respectfully pray this Court

(1) to hold that there is no right to assisted suicide in the Constitu-

tion of the United States, and (2) to reverse and/or vacate the

decision of the United States Court of Appeals for the Ninth

Circuit.

Respectfully submitted,

James Bopp, Jr.

Counsel of Record

Richard E. Coleson

Bopp, COLESON & BOSTROM

401 Ohio Street

P.O. Box 8100

Terre Haute, IN 47808-8100

Telephone (812) 232-2434

November 12, 1996 Counsel for Amici Curiae

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