Amicus Curiae Brief — Washington v. Glucksberg

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No. 96°70 G6 HE genx

In The

Supreme Court of the United States

October Term, 1996

STATE OF WASHINGTON, ET AL..,

Petitioners-Appellants,

Vv.

HAROLD GLUCKSBERG, ET AL.,

Respondents-Appellees.

On Appeal From The United States Court

Of Appeals For The Ninth Circuit

BRIEF FOR THE NATIONAL SPINAL CORD

INJURY ASSOCIATION, INC., AS

AMICUS CURIAE SUPPORTING APPELLANTS

* Counsel of Record

Leonard F. Zandrow, Jr.*

Calum B. Anderson

BRISTER & ZANDROW, L.L.P.

101 Arch Street, 9" Floor

Boston, Massachusetts, 02110-1112

(617) 439-9400

<4

A. Introduction: Nature of Ninth Circuit’s

Fundamental Error. ................ 4

B. Deference Should Be Paid to the Supreme

Liberty

Interest Identified by the Ninth Circuit. 8

D. A Right to Die Is Not “Implicit in the

Concept of Ordered Liberty.” ....... 12

E. A Right-to-Die Was Not Presaged or

Mandated by this Court’s Ruling in

DE diaustudetin gbhesev es 004 15

II. Alternatively, If This Court Were To Recognize

A Constitutional “Right-to-Die,” It Should

Ensure That Such Right Would Be Rigidly

Qualified And Never Applied Against The

Interests Of The Disabled. ..............-- 17

A. Sanctioning Assisted Suicide Will

Place Undue Pressure on the Disabled. 17

B. The Risk of Error in the Life-Death Decision

Process for Spinal-Injured Persons Is

rr 20

CONCLUSION. 2... cc cccccscncccccvesssscenstsssesee= 27

+ <1 TT

Adamson v. People of State of California, 322 U.S. 46 (1947) .. 7

American Communications Association v. Douds,

i chee eeeeebhsebocscccccscccccccess 6

Bowers v. Hardwick, 478 U.S. 186 (1986) .............. 9,13

Buck v. Bell, 274 U.S. 200 (1927) .... 0.0... eee 10

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

ee ccd sce cctecccocces passim

Cruzan v. Director, Missouri Dept. of Health,

che ecececccseocscccccccccs 15-17

Davis v. State, 118 Ohio St. 25, 160 N.E.473 (1928) ........ 10

DeAryan v. Butler, \19 Cal.App.2d 674, 260 P.2d 98

(1953), cert. denied, 347 U.S. 1012 (1954) .............. 10

Eisenstadt v. Baird, 405 U.S. 438 (1972) ................. 13

Faretta v. California, 422 U.S. 806 (1975) ..... 2... 6 ooo ee. 7

Geer v. Connecticut, 161 U.S. 519 (1896)... ............... 6

Griswold v. Connecticut, 381 U.S. 479 (1965)........... 9, 13

Jacobson v. Massachusetts, 197 U.S. 11 (1905) ............ 10

Loving v. Virginia, 388 U.S. | (1967) .... 00.0.0. 0 00.00 ee. 13

Moore v. East Cleveland, 43\ U.S. 494 (1977) ............. 13

iV

National Treasury Employees Union v. Von Raab,

GED UD. GEG (IGG) .n cc cccccccccccccccccscccevccess 10

Paiko v. Connecticut, 302 U.S. 319 (1937) ..........5.. 13, 14

People v. Carmichael, 56 Misc. 388, 288 N.Y .S.2d 931

(Genesse County Ct. 1968)... 2. 6 eres 10

Pierce v. Society of Sisters, 268 U.S. 510 (1925) ........... 13

Prince v. Massachusetts, 321 U.S. 158 (1944) ............. 13

Purity Extract & Tonic Co. v. Lynch, 226 U.S. 192 (1912).... 11

Reno v. Flores, 507 U.S. 292 (1993) ... 2. 6.6 ce cee eens 13

Roberts v. United States Jaycees, 468 U.S. 609 (1984) ....... 9

Roe v. Wade, 410 U.S. 113 (1973).........-.-.-. 4,5, 13, 15, 17

Schmerber v. California, 384 U.S. 757 (1966) ............. 10

Skinner v. Oklahoma, 316 U.S. 535 (1942) .. 2... 6. eee eee 13

State v. Massey, 229 N.C. 734, 51 S.E.2d 179 (1949), appeal

dismissed, 336 U.S. 942 (1949) ©... 0... cc cc eee nes 10

Union Pac. Ry. Co. v. Botsford, 141 U.S. 250 (1891) ........ 10

United States v. Walsh, 33\ U.S. 432 (1947) ..........4.. 10

Zucht v. King, 260 U.S. 174 (1922) .. 2... cc eee 10

Vv

Other Authoriti

1 Blackstone, Commentaries ......... 2... 0 oo ce ce eee q

2 H. de Bracton (c. 1250) reprinted in On the Laws and

Customs of England 423 (S. Thorn trans., 1968) .......... 14

Aristotle, Nicomachean Ethics, Book 5, Chapter 7(1134b.18) 5

Aristotle, Rhetoric, Book 1, Chapter 13 (1373 b 4)

I a 5

Arkes, “Once More Unto the Breach: The Right to Die -- Again,”

8 Issues in L. & Med. 317(1992) ...........0..0000005. a

Baron, “Medical Paternalism and the Rule of Law,”

SR ee ED cccccccccccccccccccceces 11

a cen ebabedeakiews 5

Cox, Archibald, The Role of the Supreme Court in American

Government (New York: Oxford University Press, 1976) .... 7

Declaration of Independence .......... 2... 6. oe ee wn 6,8

Dig. Bk., tit. 1, De Adquir. Ref Dom. ......... 6... 60600 6

Donne, John, Devotions Upon Emergent Occasions ......... 25

Dyck, “An Alternative to the Ethic of Euthanasia,” reprinted in

Ethics and Medicine at 533 (Cambridge: MIT Press 1977) .. 25

Hendin, Herbert, M.D., Seduced by Death: Doctors,

Patients, and the Dutch Cure (Norton: 1996) ............ 24

vi

Locke, J., The Second Treatise of Government (J. Gough

i. Ee, GE dg wdwavadcdéuatddeends ceca 6

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

Right, 24 Dug. L. Rev. 1, 42 (1985) ................005. 14

May, et al., 3 Issues in L. & Med. 203 (1987) .............. 26

Mill, J.S., Utilitarianism and On Liberty (M. Warnock

POG GED ob deddvncigedencbsssddeecnee 9

National Spinal Cord Injury Association, Factsheet 2:

“Spinal Cord Injury Statistical Information .......... . 21,22

Note, “Compulsory Medical Treatment: The State’s interest

Re-evaluated,” 51 Minn. L. Rev. 293 (1966) ............. 10

Paine, Thomas, on Bill of Rights, 1977, reprinted in

SED 06.005 64000600nc6kdenaeedeneensetecder 7

Pothier, Traite du Droit de Propriete, Nos. 27-28. ........... 7

Pugliese, Julia, Note, Don't Ask — Don't Tell: The Secret

Practice of Physician-Assisted Suicide, 44 Hastings L. J.

Terror. So ae 14

EE 0 cn ccs dneentsesenscaetedatudeveeses 24

Report of the Council on Ethical and Judicial Affairs... 18, 20, 24

Rosenberg, Compulsory Disclosure Statutes,

280 N. Eng. J. Med. 1287 (1969) .............. acd iene 11

Rothman, “Doctored Death,’ The Nation at 26

Sn ee 24

Siegler and Weisbard. | 45 Arch. Intern. Med. 129(1985) .... 26

No. 96-110

In The

SUPREME COURT OF THE UNITED STATES

October Term, 1996

STATE OF WASHINGTON, ET AL.,

Petitioners-Appellants,

v.

HAROLD GLUCKSBERG, ET AL.,

Respondents-Appellees.

On Appeal From The United States Court

Of Appeals For The Ninth Circuit

BRIEF FOR THE NATIONAL SPINAL CORD

INJURY ASSOCIATION, INC., AS

AMICUS CURIAE SUPPORTING APPELLANTS

INTEREST OF THE NATIONAL SPINAL CORD

INJURY ASSOCIATION, INC.

The National Spinal Cord Injury Association, Inc.

(“NSCIA”) is the largest civilian organization in the United States

dedicated to improving the quality of life of persons disabled by

spinal cord injury. The NSCIA was founded by the Paralyzed

Veterans of America in 1948 and, until its relocation to the

Washington, D.C. area in July, 1996, was headquartered near the

medical and rehabilitative communities in Boston, Massachusetts.

2

Its members are among the more than 250,000 Americans

paralyzed as a result of injury and disease to the spinal cord.

Spinal cord injury is regarded by many, particularly those

who have only collateral experience with persons so afflicted, as

constituting one of the most debilitating and tragic of human

conditions. Cases of extreme spinal cord injury have been cited as

illustrating the type of impairment (especially during the early

days after an injury) which may warrant or support a desire in the

disabled individuals involved to hasten their death.

The NSCIA has a unique knowledge of, and experience

with, all types of spinal cord injury (“SCI”) and with the profound

quality of life issues which confront both newly disabled

individuals and persons with long histories of spinal injury. The

NSCIA has established a network of over 30 local chapters and

support groups nationwide for the spinal-injured, their families,

and the professionals involved with their care. The NSCIA also

operates a national toll-free referral hot line which fields

thousands of inquires each year from newly injured individuals

and others, promotes nationwide peer counseling groups, and

maintains a 60,000-item library -- the largest and most current

resource center in the world with information about spinal cord

injury.

The NSCIA’s formal mission is “to enable people with

SCI to make choices and take actions to achieve their highest level

of independence and personal fulfillment.” The organization has a

unique, real world insight and perspective on some of the core

assumptions expressed by the United States Court of Appeals for

the Ninth Circuit in this “assisted suicide” case. To the best of its

knowledge, the NSCIA has never in its 48-year history

participated as an amicus curiae in any case before this Court. On

this occasion, however, owing to its mission statement and the

responsibility it feels to its past, present, and future clients and

members, the NSCIA is compelled to submit this brief to address

certain profound misconceptions contained in the lower court’s

3

decision, which violates American tradition and jurisprudence and

which establishes a dangerous and socially undesirable precedent

-- aS a matter of constitutional law, ethics and moral responsibility.

SUMMARY OF THE ARGUMENT.

In purporting to fashion a new substantive due process

“right,” the Ninth Circuit misconstrued this Court’s decision in

Roe v. Wade and its progeny. (pp. 4-5). The lower court failed to

address the paramount effect of Natural Law in the circumstances

(pp. 5-8) and failed to recognize that the unalienable Right to Life,

which has pot been implicated in the prior abortion decisions of

this Court, predominates and invalidates the necessarily qualified

liberty interest in assisted suicide which the lower court has

created. (pp. 8-12). A right-to-die is not “implicit in the concept

of ordered liberty,” (pp. 12-15), nor was such purported “right”

presaged or mandated by this Court’s decision in Cruzan vy.

Director, Missouri Dept. of Health. (pp. 15-17).

The Ninth Circuit gave inadequate weight to the State’s

interest in protecting the disabled from being indirectly and unduly

encouraged to participate in assisted suicides. (pp. 17-20).

Sanctioning the practice of assisted suicides would represent an

especially undesirable social policy for the spinal cord injured in

this country. If a right to assisted suicide is recognized by this

Court, there is a grave and irreversible risk, inter alia, that

temporarily despondent, spinal-injured persons may err in

rendering literal life-and-death decisions. (pp. 20-26).

A. Introduction: Nature of Ninth Circuit’s Fundamental

Error.

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

790, 793-794 (9" Cir. 1996), the Circuit Court of Appeals for the

Ninth Circuit (“Ninth Circuit”) concluded that “there is a

constitutionally-protected liberty interest in determining the time

and manner of one’s own death... [and] that insofar as the

Washington statute prohibits physicians from prescribing life-

ending medication for use by terminally ill, competent adults who

wish to hasten their own deaths, it violates the Due Process Clause

of the Fourteenth Amendment.” The Ninth Circuit erred.

The threshold premise underlying the lower court’s

analysis, namely that there are “compelling similarities between

right-to-die cases and abortion cases,” Compassion in Dying v.

State of Washington, supra at 800, is fundamentally flawed. The

assumption that “both types of cases raise issues of life and

death,” id. at 800-801, misapprehends this Court’s decision in Roe

y. Wade, 410 U.S. 113 (1973) and its progeny. In defining the

privacy right of a woman to terminate a pregnancy, this Court has

never characterized the countervailing interest in protecting the

aborted fetus as representing an interest in preserving “life.” This

Court has never ruled that the woman's privacy rights predominate

a right of “life,” as such, in the fetus. To the contrary, this Court

has always emphasized in the abortion context that the existence

of the fetus (regardless of the trimester involved) represents

merely a “potential life.” The characterization of the fetus’

interest as being that of a “life interest,” as necessarily implied in

the Ninth Circuit's decision, represents a matter of religious and

5

moral values — upon which neither society, the medical world,

nor this Court has ever developed a definitive consensus.

Contrary to the Ninth Circuit’s conclusion that its creation

of a “right-to-die” may, in effect, be considered “identical to the

approach used by the Supreme Court in the abortion cases,”

Compassion in Dying v. State of Washington, supra at 801, the

lower court’s decision violates Roe, American tradition and

culture, and fundamental tenets of both Natural Law and

constitutional law.

B. Deference Should Be Paid to the Supreme Authority of

Natural Law Whenever Purporting to Recognize New

Substantive Due Process Rights.

Natural Law is as old as Aristotle, and as classical as

Cicero. See Aristotle, Rhetoric, Book |, Chapter 13 (1373 b 4) (d.

Circa 323 B.C.); Aristotle, Nicomachean Ethics, Book 5, Chapter

7 (1134 b. 18); Cicero, De Re Publica, III, xxii, 33 fl. 1* century

B.C. It is not old-fashioned, out-of-date, or irrelevant in the

context of assisted suicide, although the Ninth Circuit apparently

chose to disregard this principal source of constitutional insight in

its entirety. Natural Law has a special significance, value and

function in establishing a safety net of rights for those segments of

contemporary society which are most vulnerable to abuse, error or

indifference in the application of the law — the poor, minorities,

and disabled -- i.e., those who are least likely to influence the

This court ruled in Roe that, “[i}f ... personhood is

established, the appellant’s case [i.e., the demand for

abortion], of course, collapses, for the fetus’ right to life

would then be guaranteed specifically by the

[Fourteenth] Amendment.” Roe v, Wade, 410 U.S. at

156-157.

6

political process and least able to pursue justice through the

courts.

Since the inception of the United States, this nation has

defined its essential identity and ultimate being by reference to

Natural Law. The supreme authority of Natural Law was first

ordained as a self-evident and timeless tenet in our Declaration of

Independence. See Declaration of Independence, pars. \-2. As

Justice Jackson wrote in American Communications Association

y. Douds, 339 U.S. 382, 439 (1949), the people “who led the

struggle forcibly to overthrow lawfully constituted British

authority found moral support by asserting a natural law under

which their revolution was justified, and they broadly proclaimed

these beliefs in the document basic to our freedom.”

The supreme authority of Natural Law represents a

fundamental premise underlying the very existence of the

Constitution. See Declaration of Independence, pars. |-2. See

generally J. Locke, The Second Treatise of Government (J. Gough

rev ed. 1976) (3d ed.) (1698). Its primacy and importance should

be recognized and reaffirmed on any occasion in which the courts

purport to create and define wholly new constitutional rights, as

purportedly involved here. In quoting ancient treatises in Geer v.

Connecticut, 161 U.S. 519 (1896), this Court noted that:

“There are things which we acquire the dominion of, as by

the law of nature, which the light of natural reason causes

every man to see, and others we acquire by the civil law;

that is to say, by methods which belong to the government

... (quoting Dig. Bk., tit. 1, De Adquir. Ref. Dom.).

“The civil law, it is said, cannot be contrary to the natural

law. This is true as regards those things which the natural

law commands or which it forbids; but the civil law can

restrict that which the natural law only permits. The

greater part of al! civil laws are nothing but restrictions on

—

7

those things which the natural law would otherwise

permit.”

Id. at 523-524, quoting Pothier, Traite du Droit de Propriete, Nos.

27-28.

In noting that there is no calculus for determining which

of the first eight Amendments are incorporated into the Fourteenth

Amendment, for example, Justice Frankfurter in Adamson v.

People of State of California, 322 U.S. 46, 65 (1947) (concurring

opinion) wrote:

“ijn the history of thought ‘natural law’ has a much

longer and much better founded meaning and justification

than such subjective selection of the first eight

Amendments for incorporation into the Fourteenth.”

See also Faretta v. California, 422 U.S. 806, 831 n.39 (1975),

quoting Thomas Paine on Bill of Rights, 1977, reprinted in |

Schwartz 316 (“[T]he civil right of pleading by proxy, that is, by a

council, is an appendage to the natural right [of self-

representation]....”) (parenthetical in original). See further

Archibald Cox, The Role of the Supreme Court in American

Government (New York: Oxford University Press, 1976) at 31-32

(“Belief in natural rights and natural law were deeply ingrained in

the eighteenth-century American mind .... The conviction that

there were such natural rights made it easy to express them in a

Constitution, and then to accept the notion that a duly enacted

statute in conflict with natural rights was not a binding law ....

This early belief in the supremacy of natural law and its survival

into our own time, albeit with different intellectual trappings and

under other names, helped to secure acceptance of the legitimacy

of judicial supremacy on matters of constitutional interpretation”).

In its decision in this case, the Ninth Circu't

acknowledged that “[t]his is the first right-to-die case that this

court or any other federal court of appeals has ever decided.”

Compassion in Dying v. State of Washington, 79 F.3d at 794. In

purporting to review historic and legal attitudes toward life and

suicide, however, the lower court did not even take into account

the existence or effect of Natural Law in addressing this issue for

the first time.’

C. The Unalienable Right to Life Predominates and

Invalidates the Qualified Liberty Interest Identified by the

Ninth Circuit.

Under Natural Law and contemporary constitutional

principles (until the Ninth Circuit’s decision in this case), the

Right to Life has been regarded as unalienable. The Declaration

of Independence memorializes as a “self-evident” truth that all

persons “are endowed by their Creator with certain unalienable

Rights [and] that among these are Life....”. Dec/aration of

Independence, par. 2. The Right to Life necessarily supersedes

tv

In discussing historical attitudes toward suicide, the Ninth

Circuit instead cited, inter alia, Greek and Roman “literature,

mythology, and practice.” See id. at 806-808. Such references

are not especially illuminating. If the attitudes commonly

reflected in such sources alone were a guide to defining

contemporary constitutional law, then bestiality and incest could

perhaps be regarded as protected liberty rights under the

Fourteenth Amendment. Likewise, the reference to the Roper

Report and public opinion surveys in the Ninth Circuit’s opinion

should form no basis for this Court’s ultimate analysis of the

constitutional principles involved. If public opinion were to

drive constitutional analysis, protected conduct such as flag

burning and inter-racial marriage (indeed many of the privileges

conferred by the Bill of Rights) would never have been

recognized as liberty interests.

TT ae TI Te NT ee BNET Nae een er ae

9

any rights or privileges conferred by civil authorities and any

qualified liberty interests conferred by the courts. The tenet in our

legal tradition that “[l]ife is the immediate gift of God, a right

inherent by nature in every individual,” | Blackstone,

Commentaries 129-130, is not an inscrutably religious or moral

concept and should be given consideration and deference in this

Court’s analysis of any purported constitutional “right-to-die.”

Because it is unalienable, the Right to Life predominates

the Ninth Circuit’s newly identified liberty interest in choosing the

time and manner of one’s death. See Arkes, “Once More Unto the

Breach: The Right to Die -- Again,” 8 Issues in L. & Med. 317,

319 (1992) (“unalienable rights” are those which we are “not

competent to alienate or waive, even for ourselves, because the

goodness or badness of these rights was grounded in principle,

quite independent of our will”). By the Ninth Circuit’s own

analysis, such a liberty interest is derivative of the right of privacy

and must thus be considered dependent upon Natural Law. See

Griswold v. Connecticut, 381 U.S. 479, $10 n.1 (1965) (Black, J.,

dissenting) (“*A right of privacy in matters purely private is ....

derived from natural law’”’) (citation omitted).

The strongest supporters of liberty interests in general

have recognized that such rights are nevertheless qualified in

nature and are not unalienable like the Right to Life. Perhaps the

premier advocate of individual rights, John Stuart Mill, recognized

that personal autonomy represents a qualified right which may be

regulated by the State. See J.S. Mill, Utilitarianism and On

Liberty at 141 (M. Warnock Fontana Library ed. 1962) (State may

prevent individual from voluntarily alienating his or her rights).

See also Bowers v. Hardwick, 478 U.S. 186, 205 (1986)

(Blackman, J., dissenting) (“[T]he ‘ability independently to define

one’s identity that is central to any concept of liberty’ cannot truly

be exercised in a vacuum ....”), quoting Roberts v. United States

Jaycees, 468 U.S. 609, 619 (1984).

—————_—

10

The individual’s rights to liberty and autonomy in

American law are necessarily qualified and limited “by clear and

unquestionable authority of law.” Union Pac. Ry. Co. v. Botsford,

141 U.S. 250, 251 (1891). Historically, the States may regulate,

and have regulated, a person’s course of conduct in order to

prevent that individual from harming himself or herself. There are

numerous areas of American law where the States have undertaken

to protect individuals against their own intentions or imprudence.

See Buck v. Bell, 274 U.S. 200 (1927) (sterilization); Zucht v.

King, 260 U.S. 174 (1922) (vaccination); Jacehson vy.

Massachusetts, 197 U.S. 11, 26 (1905) (upholding compulsory

vaccination law and rejecting purported “inherent right of every

free man to care of his own body”).

The “state may regulate its internal affairs for the

protection and promotion of general health, safety, morals and

welfare of its citizens even where it proves inconvenient or

offensive to a particular individual.” Note, “Compulsory Medical

Treatment: The State’s Interest Re-evaluated,” 51 Minn. L. Rev.

293, 297 (1966). See National Treasury Employees Union v, Von

Raab, 489 U.S. 656 (1989) (drug testing); Schmerber v.

California, 384 U.S. 757 (1966) (upholding compulsory blood-test

of accused). See also People v. Carmichael, 56 Misc. 388, 288

N.Y.S.2d 931 (Genesse County Ct. 1968) (motorcyclist protective

helmets); DeAryan vy. Butler, 119 Cal.App.2d 674, 260 P.2d 98

(1953), cert. denied, 347 U.S. 1012 (1954) (flouridation of water);

State v. Massey, 229 N.C. 734, 51 S.E.2d 179 (1949), appeal

dismissed, 336 U.S. 942 (1949) (snake handling as expression of

religious belief); Davis v. State, 118 Ohio St. 25, 160 N.E.473

(1928) (palm reading and fortune telling). A plethora of pure food

and drug laws, licensure schemes, and regulations controlling

noxious substances exists which interfere with individual freedom

of choice and prevent people from injuring themselves. These

laws prevent individuals from subjecting themselves to risks

which the government considers inadvisable and effectively

preclude persons from individual self-determination and from

selecting their own risks. See United States v. Walsh, 331 U.S.

432 (1947), Purity Extract & Tonic Co. y. Lynch, 226 U.S. 192

(1912).

The abortion cases upon which the Ninth Circuit heavily

relied in fashioning its “right-to-die” present no exceptic: to the

consistent principle in constitutional law that the Right to Life

always and necessarily supersedes any qualified, prospective

liberty interest conferred by the Fourteenth Amendment. In Roe v.

Wade and its progeny, a woman’s right to terminate her pregnancy

has been balanced against the mere “potential life” interest of the

fetus (regardless of the trimester period involved or regardless of

viability), not a definitive life interest as would inherently be

involved when assessing a liberty interest purportedly possessed

by an adult — whether terminally ill or otherwise.“ Accordingly,

In the context of medical treatment, a physician's

professional judgment, as a general matter, is legally

restricted or precluded in many situations. Laws

governing narcotics, experimental drugs, and

compulsory reporting demonstrate that professional

judgment is not always of paramount consideration. See

Rosenberg, Compulsory Disclosure Statutes, 280 N.

Eng. J. Med. 1287 (1969). See generally Baron,

“Medical Paternalism and the Rule of Law,” 4 Amer. J.

of L. and Med. 337, 340 (“A decision to end the life of a

terminally ill patient is no more a mere ‘medical

question’ to be decided by doctors than a decision to

declare war is a mere ‘military question’ to be decided

by generals”).

In this context, the Ninth Circuit's evocative analogy to

both “abortions and assisted-suicides [as] flourish{ing]

in back alleys, in small street-side clinics, and in the

privacy of the bedroom,” Compassion in Dying y. State

(continued...)

12

when measured against the unalienable Right to Life, the Ninth

Circuit’s qualified liberty interest in choosing the time and manner

of one’s death is conceptually inferior and, resultantly, not

cognizable or viable.

D. A Right to Die Is Not “Implicit in the Concept of Ordered

Liberty.”

The newly created right of “choosing the time and manner

of one’s death,” Compassion in Dying v. State of Washington, 79

F.3d at 798, does not, of itself, have an experiential reality, other

than for individuals who either contemplate the affirmative taking

of their lives or actively harbor such a desire. No readers of these

words, apart from those having suicidal ideation, either know or

have an opportunity to know the time or manner in which they are

to die. Accordingly, from the outset, any such “right” is

‘(...continued)

of Washington, 79 F.3d at 801, appears to be strained.

In the words of the lower court, the “tragic

consequence” if a woman was required to terminate her

pregnancy without the assistance of a medical

professional is that she would risk serious personal

injury to herself or even perhaps death in extreme cases

of neglect by the non-professional. Such “tragic

consequence” seems less compelling and realistic in the

context of a terminally ill patient, where death itself is

the desired end. The real tragedy in such circumstances

is not that a professional is not able to facilitate the

death, but rather that the patient has not been

sufficiently comforted by attendant health care

practitioners or supported by family and friends in the

first instance, such that the uncertain fate of death holds

more promise to that individual rather than his or her

continued existence.

13

substantially more abstract than the types of concrete interests

previously recognized by this Court as being afforded Fourteenth

Amendment protection. See Loving v. Virginia, 388 U.S. | (1967)

(marriage), Skinner v. Oklahoma, 316 U.S. 535 (1942)

(procreation); Prince v. Massachusetts, 321 U.S. 158 (1944)

(family relationships); Pierce v, Society of Sisters, 268 U.S. 510,

534-535 (1925) (child rearing and education); Griswold v.

Connecticut, 381 U.S. 479 (1965) (intercourse for purposes other

than procreation); Eisenstadt v. Baird, 405 U.S. 438 (1972)

(decision whether to bear child); and Roe vy. Wade, 410 U.S. 113

(1973) (abortion).

In general, this Court has deferred extending constitutional

protection to purported due process rights unless such interests are

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

“neither liberty nor justice would exist if [they] were sacrificed.”

Palko y. Connecticut, 302 U.S. 319, 325-326 (1937). See also

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

liberty interests as being those which are “deeply rooted in this

Nation’s history and tradition”). This Court has cautioned that

“*[s]ubstantive due process’ analysis must begin with a careful

description of the asserted right, for ‘the doctrine of judicial self-

restraint requires us to exercise the utmost care whenever we are

asked to break new ground in this field.’"” Reno v. Flores, 507 U.S.

292, 302 (1993). See also Bowers v. Hardwick, 478 U.S. at 190

(“[T}here should be ... great resistance to expand the substantive

reach of [the due process clauses of the Fifth and Fourteenth

Amendments], particularly if it requires redefining the category of

rights deemed fundamental”).

As the Ninth Circuit itself appropriately noted in its

decision, the creation of a new liberty interest should reflect “the

conscience, traditions, and fundamental tenets of our nation.”

Compassion in Dying v. State of Washington, 79 F.3d at 802. The

purported “right-to-die” created by the lower court in this case,

however, does not reflect such tradition nor does it represent an

interest “implicit in the concept of ordered liberty.” See Palko vy.

14

Connecticut. 302 U.S. at 325-326. To the contrary, suicide and

assisted suicide have been historically viewed as crimes under our

heritage and law. Suicide was prohibited under the —

common ‘aw probably as early as the 13* century. See

supra at 808. See

also 2 H. de Bracton (c. 1250) reprinted in On the Laws and

Customs of England 423 (S. Thorn trans., 1968). John Locke

specifically opposed suicide as being against Natural Law and the

principle of self-preservation. See Thomas J. Marzen, et al.,

Suicide: A Constitutional Right, 24 Dug. L. Rev. |, 42 (1985). By

1868, 21 of the then 37 states in this country prohibited assisted

suicide. |g. at 25. Today, a substantial majority of the States

continue to outlaw assisted suicide. Julia Pugliese, Note, Don't

Ask — Don't Tell: The Secret Practice of Physician-Assisted

Suicide, 44 Hastings L. J. 1291, 1295 (1993). See also

Compassion in Dying v. State of Washington, 79 F.3d at 847

(Beezer, J., dissenting) (noting that currently 44 States plus

District of Columbia prohibit assisted suicide).

The fact that courts and juries may have historically

treated prosecutions of suicides with lenity and have viewed

persons who attempted suicide as not being of sound mind

indicates perhaps tolerance and compassion (as well as a practical

understanding of the limited deterrent effect of criminal penalties

for suicide), but not recognition that such conduct is

commendable, “implicit in the concept of ordered liberty,” Palko

y. Connecticut, 302 U.S. at 325-326, or that such purported “right”

should be safeguarded from State regulation except under the most

exacting standards of strict scrutiny constitutional analysis. The

lack of consensus on such a right is exemplified by the procedural

history of this case alone and the fact that the 3-judge panel

originally hearing it decided not to recognize a constitutional

“right-to-die.” Compassion in Dying v. State of Washington,

Supra at 798.

. The Ninth Circuit’s discussion of the individual

circumstances of an AIDS patient identified by the fictitious name

15

of Smith, see id. at 814, evokes a powerful image for which only

the most callous or heartless could not feel compassion and

sympathy. A timeless “law school adage,” although a cliche, is

nonetheless true: bad cases make for bad law. It should not be an

acceptable practice for this Court to reason alone from specific

examples like the ones described by the Ninth Circuit, no matter

how sympathetic, in attempting to identify and define for the

entire Nation the parameters of constitutional law and the

existence of fundamental liberty interests.

E. A Right-to-Die Was Not Presaged or Mandated by this

Court’s Ruling in Cruzan.

Aside from misapprehending the decisions in Roe v. Wade

and its progeny, the Ninth Circuit also misconstrued this Court's

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

261 (1990). Contrary to the Ninth Circuit’s characterization of

that decision, Cruzan involved the refusal of unwanted medical

treatment and was not a “right-to-die case....” Compassion ip

Dying v. State of Washington, supra at 799. More importantly,

this Court’s decision in Cruzan did not “necessarily recognize[] a

liberty interest in hastening one’s own death,” as the Ninth Circuit

has concluded. Compassion in Dying v. State of Washington,

supra at 816. Nothing in the text of the Justices’ opinions in that

case, nor subsequent interpretations of this decision by courts

(other than the Ninth Circuit in this particular case) have

suggested that Cruzan stands for the proposition that the

Constitution requires or supports recognition of a “right-to-die.”

To the contrary, the majority in Cruzan concluded that “a State

may properly decline to make judgments about the ‘quality’ of life

that a particular individual may enjoy, and simply assert an

unqualified interest in the preservation of human life to be

weighed against the constitutionally protected interests of the

individual.” See Cruzan v. Director, Missouri Dept. of Health,

497 U.S. at 282. See also id. at 300 (Scalia, J., concurring)

(“{T]}he power of the State to prohibit suicide is unquestionable”).

16

Likewise, the Ninth Circuit erred in equating an

individual’s decision to act affirmatively and directly to hasten his

or her death with the decision to refrain from receiving intrusive or

extraordinary medical treatment. The interests implicated when

deciding to terminate unwanted medical treatment are not

necessarily equivalent to the interests involved when terminating

an unwanted life. Although the Ninth Circuit declined to

recognize so, there is a profound difference in the conduct of

physicians “prescribing medication ... for the purpose of enabling

a patient to end his life,” with a patient’s “act of refusing or

terminating unwanted medical treatment.” Compassion in Dying

y. State of Washington, 79 F.3d at 802.

In this case, the Ninth Circuit should not have rejected so

casually the philosophical and legal distinction between acts of

commission and omission and between active conduct which

promotes death versus passive conduct which merely Permits the

natural process of dying to occur.

of Washington, 79 F.3d at 821. Physician-life-ending conduct,

which was not approved by Cruzan, but which would now be

authorized according to the Ninth Circuit's decision, would be

profoundly different in kind from the type of conduct addressed by

this Court in Cruzan. “Assisted suicide” would require doctors to

play an active role and be a causal agent of their own patients’

deaths in violation of the Hippocratic Oath.’ “Assisted suicide”

* The Ninth Circuit’s characterization of the Hippocratic Oath as

“hav[ing] no greater import in deciding the constitutionality of

physician assisted-suicide than it did in determining whether

women had a constitutional right to have an abortion,”

, Supra at 829,

suffers from the same infirmity discussed earlier in this brief,

namely, the lower court’s apparent failure to appreciate that a

“life” interest in the fetus has never been acknowledged as being

(continued...)

17

would cause patients to die not from the natural symptoms of their

underlying disease, but rather from death-inducing “medication”

administered from their treating physicians’ own hands. See

Cruzan v. Director, Missouri Dept. of Health, 497 U.S. at 300

(Scalia, J., concurring) (commenting that suicide “consists of an

affirmative act to end oe’s life; refusing treatment is not an

affirmative act ‘causing’ death, but merely a passive acceptance of

the natural process of dying”).

Accordingly, given the Ninth Circuit’s mistaken

interpretations of this Court’s prior decisions in Roe vy. Wade, 410

U.S. at 113 and Cruzan y, Director, Missouri Dept. Of Health, 497

U.S. at 261 and that court’s erroneous analysis of those factors

which are essential in order to create new substantive due process

rights (especially where such a purported interest implicates, and

intrudes upon, the unalienable Right to Life), the decision

recognizing a constitutional “right-to-die” should be reversed, and

such purported “right” should be declared invalid.

If this Court were to recognize a constitutional “right-to-

die,” despite the many and profound obstacles which should

properly preclude it from so doing, the amicus NSCIA

*(...continued)

implicated in this Court’s abortion decisions, in contrast to the

“life” interest which would undeniably and intrinsically be

involved in an adult person’s decision to terminate his or her

existence.

———

0 ——eeee—“—=—OS———.—.—C(

18

takes special exception to the inadequate weight given by the

Ninth Circuit to the State’s interest in preserving the sanctity of

life and in protecting the disabled from being indirectly and

unduly encouraged to participate in assisted suicides.

The Report of the Council on Ethical and Judicial Affairs,

see Joint Appendix B at 133, specifically cites as realistic the

“slippery slope” concern that “[p]ermitting assisted suicide opens

the door to policies that carry far greater risks.” Id. at 140.

According to the Report,

“if assisted suicide is permitted, then there is a strong

argument for allowing euthanasia. It would be arbitrary to

permit patients who have the physical ability to take a pill

to end their lives, but not let similarly suffering patients

die if they require the lethal drug to be administered by

another person. Once euthanasia is permitted, however,

there is a serious risk of involuntary deaths.”

Id. at 140. See also Compassion in Dying v. State of Washington,

79 F.3d at 853 (Beezer, J., dissenting) (“The poor, the elderly, the

disabled and minorities are all at risk from undue pressure to

commit physician-assisted suicide, either through direct pressure

or through inadequate treatment of their pain and suffering”).

In its decision, the Ninth Circuit specifically commented

upon “slippery slope” concerns and the related fear “advanced by

some representatives of the physically impaired ... that certain

physical disabilities will erroneously be deemed to make life

‘valueless.’” Compassion in Dying v. State of Washington, supra

at 825.° The lower court purported to “recognize the legitimacy of

6

In its decision, the Ninth Circuit never defined precisely

what it meant by the term “terminally ill adults,”

(continued...)

ee ee ee =

a ee ee ee

Ly hee

19

these concerns,” jd. at 825, but then rather cavalierly dismissed

them with the chilling observation that:

“seriously impaired individuals will, along with non-

impaired individuals, be the beneficiaries of the liberty

interest asserted here — and that if they are not afforded

the option to control their own fate, they like many others

will be compelled, against their will, to endure unusual

and protracted suffering.”

Id. at 825.

The Ninth Circuit’s reasoning here completely misses the

concerns of disability organizations such as the amicus NSCIA.

The NSCIA and its members are not interested in securing the

“benefit” of the right-to-die espoused by the Ninth Circuit. Id. at

825. Instead, the NSCIA is committed to improving its clients’

°(...continued)

although it did comment in its discussion of mootness

that “the most common classification of terminally ill

persons limits that group to individuals who are

expected to die within six months.” Id. at 796, n.4.

Although the lower court appeared to restrict its

recognition of a constitutional “right-to-die” to such

“terminally ill” persons, there appears to be no logical

reason to suppose that such a right would ultimately be

restricted to this group alone, if this Court were to agree

with the Ninth Circuit and affirm the creation of an

assisted suicide “right.” Indeed, if a right-to-die were

recognized as having constitutional dimension, the

Equal Protection Clause could be invoked in subsequent

cases to invalidate the requirements of “terminal illness”

and “mental competency” described in the Ninth

Circuit’s decision as impermissibly treating similarly

situated groups of patients differently.

20

quality of life. In this regard, the lower court’s priorities are

misplaced. If an appreciable segment of the population is not

being properly cared for, such that some of its members request

assistance at suicide, the more compassionate solution is not to

confer a constitutional right to permit such conduct (and thus

eliminate the problem along with the patient), but rather to

redouble the efforts of health care professionals to better respond

to the needs of the patients under their care, to treat pain and other

discomfort more aggressively through stronger medications or

otherwise, to better alleviate physical and emotional suffering, and

to better counsel persons regarding pain management techniques.

See generally Report of the Council on Ethical and Judicial

Affairs, Joint Appendix B at 141-142.

B. The Risk of Error in the Life-Death Decision Process

for Spinal-Injured Persons Is Grave.

Of further and even greater concern to the amicus NSCIA

is the grave risk of irreversible error in the literal life-and-death

decisions the Ninth Circuit's decision would encourage. That

court’s rationalization that “should an error actually occur{,] it is

likely to benefit the individual by permitting a victim of

unmanageable pain and suffering to end his life peacefully and

with dignity at the time he deems most desirable,” Compassion in

Dying v. State of Washington, 79 F.3d at 824, misapprehends and

trivializes the concerns of the NSCIA for those disabled by spinal

injuries, most especially the newly injured.

No doubt many tragic and sympathetic images of human

suffering among the terminally ill may be invoked in support of

the position that this Court should sanction the practice of assisted

suicide. Perhaps equally (if not more) compelling, however, are

the experiences of those individuals who may only temporarily

regard themselves as in effect being terminally ill, who may for a

short period of time subjectively believe that their lives are no

longer worth living, and whose lifestyles have been so

Fe aed te ee ee ee ”

aah

21

substantially affected that their family members and health care .

providers would objectively support their desire to terminate their

life, if such an option were given constitutional recognition.

To appreciate the inherent risk, it may be useful for this

Court to learn and weigh the most current statistical data regarding

the incidence of traumatic spinal cord injury in the United States.

The following information was compiled primarily by researchers

with the National Spinal Cord Injury Statistical Center at the

University of Alabama using data from the regional SCI Centers

funded by NIDRR. Such information is reported in Factsheet 2:

“Spinal Cord Injury Statistical Information,” the most recent

edition of which was published by the NSCIA in August, 1995.

Every year, approximately 8,000 to 10,000 new spinal

cord injuries are sustained by Americans, mostly teenage males,

primarily as a result of vehicle accidents, acts of violence, sports-

related injuries and falls. ld. The highest per capita rate of injury

occurs between the ages of 16-30 years. Id, The average age at

injury is 33.4 years, the median age at injury is 26 years, and the

“most frequent age at injury is 19 years. ld, Motor vehicle

accidents are the leading cause of spinal cord injury (44%),

followed by acts of violence (24%), falls (22%), sports (8%), and

other (2%). Id. Approximately two-thirds of sports injuries are

from diving. Id.

The primary symptom of spinal cord injury is paralysis

which takes two forms: |) paraplegia, which is paralysis affecting

the legs and lower parts of the body, and 2) quadriplegia, which is

paralysis affecting the level below the neck and chest area and

which involves both the arms and the legs. Id. Paralysis is often

accompanied by a partial or complete loss of sensation and various

bodily functions, as well as a host of other secondary medical

problems, such as: demineralization of bone, reduction in

pulmonary function, dysfunction of the kidney, bladder and

bowels, sexual dysfunction, muscle spasms, skin sores, and

chronic pain. Id, Individuals with SCI encounter other problems

22

beyond these physical symptoms, such as: coping with the stigma

of being disabled, barriers to employment opportunities,

difficulties expressing sexuality, and other social and personal

issues which can be a major part of living with a spinal cord

injury. Id.

Since 1988, 45% of all spinal cord injuries have been

classified as “complete,” meaning that the injuries have resulted in

a total loss of sensation and function below the injury level; 55%

of spinal injuries are classified as “incomplete,” meaning that the

individual involved experienced only a partial loss of sensation

and function below the injury level. Id, Slightly more than one-

half of all injuries result in quadriplegia. Jd, However, the

proportions of quadriplegics increase markedly after age 45,

comprising two-third of all injuries after the age of 60 and 87% of

all injuries after the age of 75. Jd, Most people with

neurologically complete lesions above C-3, who survive their

injury, become dependent upon mechanical respirators to breathe.

Id, Overall, 85% of SCI patients who survive the first 24 hours

after their injury are still alive 10 years later. Id,

As stated in this brief when discussing the “Interest of the

Amicus,” supra, p. 2, few injuries are considered as debilitating as

a spinal cord injury. Such injuries most frequently occur abruptly

during one’s relative youth as a result of a sudden accident, giving

the affected individual and his or her family essentially no time to

prepare emotionally for what may both initially and ultimately

require a drastic alteration in the injured person’s lifestyle.

Factsheet 2, supra. Obviously, it is not uncommon for the affected

individual to become seriously depressed and to question whether

his or her life, given the nature and extent of the restrictions which

may be imposed by the disability, is worth living. Not

infrequently, the newly spinal-injured in particular may harbor

thoughts about the quality of their existence and may speculate

whether their lives, with little hope for a recovery, continue to

have value. The process of emotional adjustment, of course,

varies greatly among the individuals involved. Commonly, such

23

process may progress through distinct stages somewhat

comparable to the emotional adjustment which individuals may

experience as a result of the death of a loved one.

It is in this context, that the Ninth Circuit’s response to the

express concern that “certain physical disabilities will erroneously

be deemed to make life ‘valueless’,” Compassion in Dying v,

State of Washington, 79 F.3d at 825, seems incomplete and

hollow. The lower court’s rationalization that

“[o}rganizations representing the physically impaired are

sufficiently active politically and sufficiently vigilant that

they would soon put a halt to any effort to employ assisted

suicide in a manner that affected their clients unfairly,”

id. at 825, appears to be unduly optimistic and uninformed. The

amicus NSCIA, as just one example, although constituting the

largest civilian organization in its field, is (like most disability

organizations) a not-for-profit corporation with limited financial

resources. Owing to its network of local chapters and support |

groups and its peer assistance counseling programs, the NSCIA is

perhaps in a slightly better position than most national disability

organizations to assure that certain newly injured individuals are

receiving sufficient care and encouragement, are retaining hope,

and are being empowered to confront the obstacles their mjuries

may present to them. Nonetheless, given the thousands of newly

injured persons across the country each year and the limited

financial resources available to the organization, it is more likely

and more realistic to expect that the NSCIA would be able only to

respond to specific inquiries from its members and clients, rather

than proactively discover individual cases in which severe

despondency and/or tragic errors in its clientele’s expectations

may occur. Until suicidal ideation becomes more socially and

culturally acceptable and common, moreover (a “value” which ts

antithetical to the NSCIA’s mission and a judgment which it hopes

this society never establishes as an ideal), it is likely that most

persons contemplating suicide would not readily or publicly

24

disclose their intentions, making it that much more difficult for the

NSCIA to identify and respond to ar individual’s need. Over

time, assisted suicides in this context could be portrayed and

encouraged as being an heroic sacrifice to permit a reallocation of

limited medical resources to others and to alleviate a “burden” on

the time and finances of the disabled person’s family. Those

opting to live could be viewed as “selfish” and as constituting a

drain on society and their loved ones.’

"The Dutch experience with euthanasia, cited in the

Council on Ethical and Judicial Affairs in the Joint

Appendix at 141, demonstrates the risks of sanctioning

physician-assisted suicide. In the Netherlands, there are

strict criteria for the use of euthanasia which are similar

to the criteria proposed for assisted suicide in the United

States. In a leading Netherland’s study, see id.,

however, researchers found that, in about 28% of the

cases of euthanasia or physician-assisted suicide, the

strict criteria were not fulfilled, suggesting that some

patients’ lives were ended prematurely or involuntarily.

In the 1991 Remmelink Report, moreover, more than

one-half of the Dutch physicians considered it

appropriate to initiate the subject of euthanasia with

their patients. See Rothman, “Doctored Death,” The

Nation at 26 (November 18, 1996), reviewing Herbert

Hendin, M.D., Seduced by Death: Doctors, Patients,

and the Dutch Cure (Norton: 1996). These physicians

apparently justified this practice as not constituting a

form of coercion, but rather as merely enabling their

patients to consider an option that they otherwise might

not have raised. Jd, In such circumstances, particularly

where the individual involved has recently suffered a

sudden and debilitating injury, it requires little

imagination to see how the physician’s initiative might

(continued...)

25

The recognition of a “right-to-die” would undermine the

mission of the NSCIA and ultimately the value society places on

the lives of all of its members. To adopt the analysis of the Ninth

Circuit would be to decide that our society no longer values its

members insofar as they are persons with intrinsic dignity — that

is, with inherent value independent of what they can do and

contribute — but only insofar as they are useful, or so long as their

lives have sufficient “quality.” However, each individual's life is

a gift bestowed and protected by the human community and by the

ultimate forces that make up the cycle of birth and death. As the

NSCIA knows only too well from its experiences with the spinal-

injured, in life there may be suffering, as there is joy. But,

suffering does not render a life meaningless or worthless.

“Suffering people need the support of others; suffering people

should not be encouraged to commit suicide by their community,

or that community ceases to be a community.” Dyck, “An

Alternative to the Ethic of Euthanasia,” reprinted in Ethics and

Medicine at 533 (Cambridge: MIT Press 1977). Persons do not,

and should not, live purely unto themselves."

7(...continued)

be interpreted as a warning (“no one would want to go

through what | know is in store for you”) or

abandonment (“you are no longer worth caring for’) or

dismissal (“your life is not worth living”). Id.

i

“No man is an island, intire of its selfe; every man is a

piece of the Continent, a part of the maine ... and man’s

death diminishes me, because | am involved in

mankind.”

John Donne

Devotions Upon Emergent Occasions

26

Allowing a patient, guardian, or physician to determine

that a “terminally ill” person’s life is, in effect, “worthless”

necessarily involves a subjective judgment about that person’s

quality of life and creates dangerous precedent. The same

judgment could be applied with equal force to circumstances much

different than those involved in

. See Siegler and Weisbard, 145 Arch. Intern. Med.

129, 130 (1985) (“We have witnessed too much history to

disregard how easily a society may disvalue the lives of the

“‘unproductive’”).

“If it becomes entrenched practice to kill by omission

certain sorts of persons whose condition is very poor and

whose lives are judged by others no longer to be worth

living, then this method of killing surely will be extended

to many other persons. Most of the cases that have

attracted attention thus far has involved the very severely

brain damaged — those who are permanently

unconscious, severely damaged by strokes, in advanced

stages of dementia due to Alzheimer’s or another disease,

and so on. But the various sort of damages, defect,

debility, and handicap that burden human lives occur in

myriad degrees, so that there are always more and less

severe cases differing from one another only by degree.

Unfortunately, it is not difficult to image a future America

in which human life may itself be judged excessively

burdensome for all persons who cannot care for

themselves and have no one willing and able to care for

them.”

May, et al., 3 Issues in L. & Med. 203, 207 (1987).

27

CONCLUSION.

The judgment of the Ninth Circuit Court of Appeals

should be reversed, and the purported “right-to-die” recognized Py

that court should be declared invalid.

Respectfully submitted,

NATIONAL SPINAL CORD INJURY

ASSOCIATION, INC.

By its attorney and Director,

Leonard F. Zandrow, Jr.

BRISTER & ZANDROW, L.L.P.

101 Arch Street, 9” Floor

Boston, Massachusetts 021 10-11 12

(617) 439-9400

Date: November 12, 1996