Amicus Curiae Brief — Washington v. Glucksberg

(5) 65) SY Supreme Court, U.S.

SEHEILPTED

Nos. 95-1858 and 96-110 CED: 10 1996

Supreme Court of the United

October Term, 1996

DENNIS C. VACCO, et al.,

Petitioners,

Vv.

TIMOTHY E. QUILL, M.D., et al.,

Respondents.

STATE OF WASHINGTON, ef ail.,

Petitioners,

Vv.

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

Respondents.

On Writ of Certiorari to the United States Courts of Appeals

for the Second and Ninth Circuits

BRIEF AMICI CURIAE SUPPORTING RESPONDENTS OF THE

AMERICAN CIVIL LIBERTIES UNION, AMERICAN CIVIL

LIBERTIES UNION OF WASHINGTON, NATIONAL GRAY

PANTHERS PROJECT FUND, (continued on back of cover)

KAREN E. BOXX CAMERON CLARK

. KELLER ROHRBACK (Counsel of Record)

=~» 7201 Third Ave., Suite 3200 CLAUDIA L. HAMMERMAN

Seattle, WA 98101 DOUGLAS A, BERMAN*

(206) 623-1900 1285 Avenue of the Americas

New York, NY 10019

Of Counsel: (212) 373-3000

; STEVEN R. SHAPIRO

AMERICAN CIVIL LIBERTIES

UNION FOUNDATION

_- 132 West 43rd Street

New York, NY 10036 * Awaiting ac mission to the Bar of the

(212) 944-9800 State of New York

a ae ae.) ae

<i a ee ee cet ~

BEST AVAILABLE COPY

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TABLE OF CONTENTS

INTERESTS OF AMICI CURIAE ................. l

SUMMARY OF ARGUMENT ................... l

THE DUE PROCESS CLAUSE OF THE

FOURTEENTH AMENDMENT PROTECTS

THE PERSONAL CHOICE OF A MENTALLY

COMPETENT, TERMINALLY ILL INDIVIDUAL

TO END UNENDURABLE SUFFERING AND

HASTEN INEVITABLE DEATH .............. 2

A. The Right of a Mentally Competent, Terminally

Ill Person to Choose an End to Suffering by

Hastening an Inevitable Death Is Deeply Rooted

in this Nation’s History and Tradition. ......... 4

B. The Right of a Mentally Competent, Terminally

Ill Person to Choose an End to Suffering by

Hastening an Inevitable Death Is Implicit in the

Concept of Ordered Liberty ................ 9

A BLANKET PROHIBITION AGAINST AID

TO SUICIDE UNDULY BURDENS THE RIGHT

OF THE TERMINALLY ILL TO MAKE

RATIONAL END OF LIFE DECISIONS.......... 14

A. A Blanket Ban on Assistance to Suicide Is a

Substantial Obstacle to the Right of the

Terminally Ill to End Their Suffering. ......... 15

B. The States’ Asserted Interests Do Not Justify an

Absolute Ban on Physician Aid in Dying for the

CECE eh be wekhebecbececcceces 17

1. Interest in Preserving Each Citizen's Life .... . 17

ii

TABLE OF CONTENTS — Continued

Page

2. Preventing Undue Influence or Mistake ...... 19

3. Implicating Doctors in Killing and

Slippery-Slope Arguments ...........++. 22

Ill. BECAUSE TERMINALLY ILL PATIENTS ON

LIFE SUPPORT HAVE THE RIGHT TO MEDICAL

ASSISTANCE IN HASTENING DEATH, DENYING

TERMINALLY ILL PATIENTS NOT ON LIFE

SUPPORT MEDICAL ASSISTANCE IN HASTENING

DEATH VIOLATES THE EQUAL PROTECTION

CLAUSE OF THE FOURTEENTH AMENDMENT

os bl) PP PrerrerrrT Tr ree ere

TABLE OF AUTHORITIES

CASES Page

Compassion In Dying v. Washington,

79 F.3d 790 (9th Cir. 1996) ............. passim

Cruzan v. Director, Missouri Dept.

of Health, 497 U.S. 261 (1990) .......... passim

Daniels v. Williams, 474 U.S. 327 (1986) ............ 2

Eisenstadt v. Baird, 405 U.S. 438 (1972) ............ 10

Estelle v. Gamble, 429 U.S. 97 (1976) .............. 12

Griswold v. Connecticut, 381 U.S. 479 (1965) ......... 10

Hudson v. McMillian, 503 U.S. 1 (1992)... 2.2... 6... 12

Ingraham v. Wright, 430 U.S. 651 (1977) ............ 12

Jacobson v. Massachusetts, 197 U.S. 11 (1905) ..... 11, 12

Loving v. Virginia, 388 U.S. 1 (1967) .............. 10

Moore v. City of East Cleveland,

ee 3, 10, 15

Palko v. Connecticut, 302 U.S. 319 (1937) ........... 3

Parham v. J.R., 442 U.S. 584 (1979) ... 0... eee ee 12

Planned Parenthood of Southeastern Pennsylvania v.

Casey, 505 U.S. 833 (1992) ............. passim

Poe v. Oliman, 367 U.S. 497 (1961) ..........2.45.5. 3

Prince v. Massachusetts, 321 U.S. 158 (1944) ......... 10

iv

TABLE OF AUTHORTIES — Continued

Page

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

Rochin v. California, 342 U.S. 165 (1952) ......... 3, 11

Roe v. Wade, 410 U.S. 113 (1973) ........--005- 4, 10

Royster Guano Co. v. Virginia, 252 U.S. 412 (1920) ..... 24

Schmerber v. California, 384 U.S. 757 (1966) ......... 11

Vitek v. Jones, 455 U.S. 480 (1980) ...........0005- 12

Washington v. Harper, 494 U.S. 210 (1990) ....... 11, 12

Winston v. Lee, 470 U.S. 753 (1985) ..........0005- il

Wooley v. Maynard, 430 U.S. 705 (1977) .........45. 18

STATUTES

N.Y. Pub. Health Law §§ 2960 et seq. (McKinney 1993) .. 19

N.Y. Pub. Health Law § 2981 (McKinney 1993) ........ 19

Or. Rev. Stat. §§ 127.800-127.995 (1995) ............ 22

US. Comm. Amend. MEV wc ccc cece scccseces 2

MISCELLANEOUS

Aptapatie’s PeMMhGs ow ccc ccc cece sessccresees 5

M. Babst Battin & David J. Mayo, Suicide:

The Philosophical Issues (1980) .......... 5, 6,8

Vv

TABLE OF AUTHORTIES — Continued

Page

Howard Brody, Assisted Death — A Compassionate

Response to Medical Failure, 327 New Eng.

pe ae ee oe ek tag ks 13

Maria T. CeloCruz, Note, Aid-In-Dying: Should We

Decriminalize Physician-Assisted Suicide and

Euthanasia?,

18 Am. J.L. & Med. 369 (1992) ............. 6

Ronald Dworkin, Life's Dominion: An Argument

About Abortion, Euthanasia, and Individual

ED ot web WoW ec OUR Se dad Us 666% 14

Clyde H. Farnsworth, Vancouver AIDS Suicides

Botched, N.Y. Times, June 14, 1994, atC12 ..... 17

K. Frederickson, Torn Mother: | Helped Her Pass On,

Oregon Bulletin, May 16, 1994, atAl ......... 17

Gina Kolata, AIDS Patients Seek Solace in Suicide

But Many Risk Added Pain in Failure,

N.Y. Times, June 14, 1994, atCl ............ 17

John Locke, The Second Treatise of Government

(C.B. Macpherson ed. 1980) ................, 7

New York State Task Force on Life and the Law,

When Death Is Sought; Assisted Suicide and

Euthanasia in the Medical Context (1994) .......... 21

Note, Physician-Assisted Suicide and the Right to

Die with Assistance, 105 Harv. L. Rev. 2021 (1992) 7

Sherman B. Nuland, How We Die (1993) ............. 5

vi

TABLE OF AUTHORTIES — Continued

Thomas A. Preston, Killing Pain, Ending Life,

N.Y. Times, Nov. i, 1994, atA27.......--.

Julia Pugliese, Note, Don’t Ask Don't Tell:

The Secret Practice of Physician-Assisted Suicide,

44 Hastings L.J. 1290 (1993) ....---seees

Timothy G. Quill, Death and Dignity: A Case of

Individualized Decision-making, 324 New Eng.

J. Med. 691 (1991) 2... ee ee ees

O.R. Russell, Freedom to Die (1975) .....-++>+>

The Republic of Plato (Alan Bloom ed. 1968) .....

Catherine D. Shaffer, Note, Criminal Liability for

Assisted Suicide, 86 Colum. L. Rev. 348 (1986)

Jeff Stryker, A Bedside Manner for Death and Dying,

N.Y. Times, May 19, 1996, § 4, at3 ......-.

Patricia A. Unz, Note, Euthanasia: A Constitutionally

Protected Peaceful Death, 37 N.Y. L. Sch. L.

Rev. 439 (1992) 2. ees

INTERESTS OF AMICI CURIAE

The interests of amici curiae are set forth in the appendix to

this brief.’

SUMMARY OF ARGUMENT

At issue in this case is no more and no less than (1) whether

a mentally competent, terminally ill person suffering intolerably has

a liberty interest protected by the Fourteenth Amendment in

choosing to hasten the timing of an inevitable death, (2) whether a

State’s interests can justify a blanket prohibition on physicians

providing assistance in the exercise of such a liberty interest, if it

so exists, and (3) whether a state can justifiably grant certain

persons the opportunity to make the choice to hasten death while

denying to other, similarly situated persons the same opportunity.

The right of a competent, terminally ill person to avoid excru-

ciating pain and embrace a timely and dignified death bears the

sanction of history and is implicit in the concept of ordered liberty.

The exercise of this right is as central to personal autonomy and

bodily integrity as the exercise of rights safeguarded by this Court's

decisions relating to marriage, family relationships, procreation,

contraception, child rearing and the refusal or termination of life-

saving medical treatment. In particular, this Court’s recent

decisions concerning the right to refuse medical treatment and the

right to abortion instruct that a mentally competent, terminally ill

person has a protected liberty interest in choosing to end intolerable

suffering by hastening his or her own death.

A state’s categorical ban on physician assistance to suicide —

as applied to competent, terminally ill patients who wish to avoid

unendurable pain and hasten inevitable death — substantially

interferes with this protected liberty interest and cannot be

sustained. Though a state has significant interests in ensuring that

the right at issue here is not abused or misused, an absolute ban on

physician assistance unduly burdens the proper exercise of the right

of the terminally ill to seek freedom from pain through

death,especially given the less restrictive alternatives that are

' Letters of consent to the filing of this brief have been lodged with the Clerk

of the Court pursuant to Rule 37.3.

2

available to a state and that would in fact greater serve its claimed

interests.

Indeed, states typically and successfully employ less restrictive

alternaiives than blanket prohibitions for terminally ill patients

depending on life-sustaining treatment who wish to hasten death.

States have recognized the right of this class of terminally ill

patients to escape pain and hasten death through the termination or

refusal of such life support and accompanying administration of

large and lethal doses of pain-suppressing medication. Accordingly,

a state denies equal protection of its laws when it provides that one

class uf persons may exercise this right while others who are

similarly situated for all relevant purposes are wholly denied the

opportunity to exercise the same right for the same reason.

ARGUMENT

I

THE DUE PROCESS CLAUSE OF THE FOURTEENTH

AMENDMENT PROTECTS THE PERSONAL CHOICE OF

A MENTALLY COMPETENT, TERMINALLY ILL

INDIVIDUAL TO END UNENDURABLE SUFFERING AND

HASTEN INEVITABLE DEATH

The Due Process Clause of the Fourteenth Amendment

declares that no State shall “deprive any person of life, liberty, or

property, without due process of law.” U.S. Const. Amend. XIV.

The Due Process Clause has long been held to contain a substantive

component forbidding certain government actions regardless of pro-

cedural fairness. See Planned Parenthood of Southeastern

Pennsylvania v. Casey, 505 U.S. 833, 846 (1992); Daniels v.

Williams, 474 U.S. 327, 331 (1986).

The content of substantive due process — i.e., the constitu-

tionally protected interests comprehended within the term “liberty”

— cannot be determined by easy reference to any rule, text or

historical period. “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.” Casey, 505

U.S. at 848. In the words of Justice Harlan,

Ae il A I 5 ae

the full scope of the liberty guaranteed by the Due Process

Clause cannot be found in or limited by the precise terms of

the specific guarantees elsewhere provided in the

Constitution.... It is a rational continuum which, broadly

speaking, includes a freedom from all substantial arbitrary

impositions and purposeless restraints.

Poe v. Ollman, 367 U.S. 497, 543 (1961) (Harlan, J., dissenting).

Accordingly, in determining the reach of the “least specific and

most comprehensive protection” that is the Fourteenth

Amendment’s guarantee of liberty, courts must employ considered

reason and remain “duly mindful of reconciling the needs both of

continuity and of change in a progressive society.” Rochin v.

California, 342 U.S. 165, 170, 172 (1952); see also Casey, 505

U.S. at 847-49 (courts must employ “reasoned judgment” to

determine the scope of that “realm of personal liberty which the

government may not enter”).

Although the boundaries of substantive due process “are not

susceptible of expression as a simple rule,” Casey, 505 U.S. at

849, this Court has articulated two basic lines of inquiry for

deciding whether a particular right falls within the liberty provision

of the Due Process Clause. First, the Court has looked to whether

the asserted right is “deeply rooted in this Nation’s history and

tradition.” Moore v. City of East Cleveland, 431 U.S. 494, 503

(1977). Second, the Court has consulted the present conscience of

the people to determine whether the asserted right is “implicit in

the concept of ordered liberty,” such that “neither liberty nor

justice would exist if [it] were sacrificed.” Palko v. Connecticut,

302 U.S. 319, 325-26 (1937).

In this case, either line of inquiry leads to the conclusion that

a mentally competent, terminally ill person’s decision to escape

unendurable suffering by choosing to die is entitled to recognition

as a constitutionally protected liberty interest. That is, the right of

the terminally ill to find relief from excruciating pain by hastening

death bears the sanction of history. It is also entirely consistent with

other rights of fundamental personal autonomy that this Court has

found “implicit in the concept of ordered liberty” and thus

embraced by the Fourteenth Amendment’s Due Process Clause.

4

A. The Right of a Mentally Competent, Terminally Ill

Person to Choose an End to Suffering by Hastening an

Inevitable Death Is Deeply Rooted in this Nation’s

History and Tradition.

Petitioners and their supporting amici contend that history and

tradition support their position, but in doing so they improperly

define the practice at issue here. Although history’s view of suicide

generally is subject to debate, this case presents only the narrow

question of whether a mentally competent, terminally ill person has

a right to seek an end to intolerable suffering by hastening an

inevitable death.? Framed in these terms, the historical analysis

appears very different. In fact, there is a strong hi-torical tradition

accepting, and often honoring, terminally ill persons who choose a

timely and dignified death in the face of unrelenting and

unendurable suffering.

This tradition traces back at least as far as the Greek and

Roman philosophers, who accepted suicide where necessary to

achieve a dignified death and to escape from a terminal and

incapacitating disease.’ For example, Plato's Republic sanctioned

a choice to die under such circumstances: “If any man labour of an

? The complaint in the case from Washington asserted the issue in terms of

whether the “Fourteenth Amendment protects the nghts of terminally ill adults

with no chance of recovery to make decisions about the end of their lives,

including the right to choose to hasten inevitable death with suitable physician-

prescribed drugs and thereby avoid pain and suffering.” Pet. App. A1l7 n.7. The

first paragraph of the compiaint describing the nature of the action brought in New

York asserted the issue in the same terms.

As the Ninth Circuit noted, following the approach of this Court's abortion

decisions, the liberty interest at stake is not the right to assistance with suicide

but, rather, the right of the terminally ill to hasten their death. If such a right

exists, then the inquiry is whether a complete ban on assistance in exercising this

liberty interest constitutes an undue burden. See Compassion In Dying v.

Washington, 79 F.3d 790, 801-02 (9th Cir. 1996).

+. This Court has considered the moral tradition of the Greeks in assessing other

liberty interests. See Roe v. Wade, 410 U.S. 113, 130-32 (1973).

5

incurable disease, he may dispatch himself, if it be to his good.”*

Similarly, the Stoics of Rome, who believed that freedom must be

based on the dictates of the deliberative will rather than passion or

compulsion, embraced suicide as an appropriate response to a -

terminal illness whose overpowering physical assaults and demands

would otherwise superimpose itself on the will and usurp the

freedom of the sufferer.’

Significantly, neither the Old nor the New Testament prohibits

suicide.* The notion of suicide as a crime was not introduced until

late in Christian doctrine, and then only as a response to the temp-

tation that martyrdom held for the early Christians.’ Moreover,

* The Republic of Plato Book II), 406a-409 (Alan Bloom ed. 1968). Aristotle,

woo, endorsed this possibility in his Politics. See Aristotle's Politics Ml, vi,

1278b15-30

> See Patricia A. Unz, Note, Euthanasia: A Constitutionally Protected Peaceful

Death, 37 N.Y.L. Sch. L. Rev. 439, 441-42 (1992). Writing in this tradition,

Seneca, the great Roman orator, stated:

1 will not relinquish old age if it leaves my better part intact. But if it begins

to shake my mind, if it destroys its faculties one by one, if it leaves me not

life but breath, | will depart from the putrid or tottering edifice. | will not

escape by death from disease so long as it may be healed, and leaves my mind

unimpaired. | will not raise my hand against myself on account of pain, for

80 to die is to be conquered. But | know if | must suffer without hope of

relief, I will depart, not through fear of the pain itself, but because it prevents

all for which | would live.

Quoted in Sherman B. Nuland, How We Die 151 (1993).

* None of the four suicides recorded in the Old Testament — Samson, Saul,

Abimelech and Achitophel — is criticized. See Alfred Alvarez, “The Background”

12, in M. Babst Battin & David J. Mayo, Suicide: The Philosophical Issues

(1980). The New Testament (Matthew) records the suicide of Judas Iscariot

perfunctorily, “instead of being added to his crimes, it seems a measure of his

repentance.” Jd. “In the first years of the Church, suicide was such a neutral

subject that even the death of Jesus was regarded by Tertullian, one of the most

fiery of the carly Fathers, as a kind of suicide.” Jd.

’ The Christian church taught that the world was a vale of tears, sin and

temptation, from which death would release the faithful into eternal glory.

Martyrdom afforded certain redemption, and the names of carly martyrs were

celebrated and ther relics worshiped. The temptation to martyrdom culminated in

the frenzy of the Donatists who, in the fourth and fifth centuries, actively pursued

death. In response, St. Augustine argued in his writings that suicide was a sin.

6

despite the Church’s general prohibition on suicide, certain

prominent adherents recognized the appropriateness of choosing

death as a means to end intolerable suffering for the terminally ill.

Sir Thomas More, who was later canonized by the Roman Catholic

Church, strongly supported the right of those with incurable

diseases to commit suicide, and in Utopia he depicted the ideal

treatment of the terminally ill, “full of continual pain and anguish,”

as allowing the patient to “despatch himself out of that painful life,

as out of a prison.”*

The origin of suicide as an English common law offense was

also ecclesiastical; thus, the initial penalty was merely the denial of

a Christian burial.* During feudal times, the penalty was expanded

to include the forfeiture of goods to the suicide’s liege lord; later,

the Crown declared suicide a felony, primarily because a felon’s

goods were then forfeited directly to the King." The common law,

however, has never treated all suicides alike. Of greatest signifi-

cance here, it was more lenient from the outset with those who

killed themselves due to an inability to endure the suffering of

disease."

The crime of suicide, along with the rest of English common

law, migrated to the American colonies, but it never took root even

in its more limited form. As the Ninth Circuit explained: “There is

no evidence that any court ever imposed a punishment for suicide

or attempted suicide under common law in post-revolutionary

America. By the time the Fourteenth Amendment was adopted in

1868, suicide was generally not punishable, and in only nine of the

These arguments, coupled with the example of the Donatists, convinced the

Church to legislate against suicide. See id. at 25-28.

* Quoted in O.R. Russell, Freedom to Die 55-56 (1975).

* See Maria T. CeloCruz, Note, Aid-In-Dying: Should We Decriminalize

Physician-Assisied Suicide and Physician-Commitied Euthanasia?, 18 Am. J.L. &

Med. 369, 373 (1992).

© Id. at 373-74.

" See Compassion, 79 F.3d at 808-09 (citing 2 H. de Bracton (c. 1250) re-

printed in On the Laws and Customs of England 423 (S. Thorne trans., 1968).

7

37 states is it clear that there were statutes prohibiting assisting

suicide.” Compassion In Dying v. Washington, 79 F.3d 790, 809

(9th Cir. 1996).

Today, no American jurisdiction criminalizes suicide or

attempted suicide. And while a small majority of states currently

criminalize assistance to suicide, there is no reported American case

of a physician criminally punished for helping a patient commit

suicide notwithstanding the fact that assisting the terminally ill who

wish to hasten their deaths has been a time-honored, though hidden,

practice of compassionate physicians.'? For well over the past half

century, no person (physician or otherwise) has been meaningfully

punished for aiding the terminally ill to end their suffering."’ This

reluctance to prosecute and failure to punish can only be explained

by society's abiding judgment that it has no right to insist on the

continued suffering of the terminally ill, and no right to punish

those who honor the request of the terminally ill by assisting them

in ending their agony."

2 See id. at 811 & nn.56-59; sce also Note, Physician-Assisted Suicide and

the Righi to Die with Assistance, 105 Harv. L. Rev. 2021, 2021 n.7 (1992).

® “[Fjrom 1930 to 1985, not one state court decision on an actual prosecution

for suicide assistance appears in an official state reporter.” Catherine D. Shaffer,

Note, Criminal Liability for Assisted Suicide, 86 Colum. L. Rev. 348, 358 (1986).

Based on newspaper and wire service accounts, it appears that such cases cither

have not been prosecuted or have resulted in acquittal or sentences of probation.

See id. In the last decade, of course, there have been several well-publicized

prosecutions. All, so far, have resulted in jury acquittals. See Jeff Stryker, A

Bedside Manner for Death and Dying, N.Y. Times, May 19, 1996, § 4, at 3.

'* Indeed, to argue that suicide by persons suffering from terminal illness is

ethically wrong, philosophers and theologians have had to resort to the concept of

God's proprietary claim over his creations. John Locke argued that suicide was

a crime because man does not have absolute dominion over himself, his being

belongs to God and he thus has no right to destroy it. “[M]en being the

workmanship of one omnipotent ... makes al] servants of one sovereign master,

sent into the world by his order and about his business — they are his property,

whose workmanship they are, made to last during his, not another's pleasure.”

John Locke, The Second Treatise of Government 9, 17, 21 (C.B. Macpherson ed.

1980). The theologian, Dietrich Bonhoeffer, has similarly stated: “It becomes

quite clear thal a purely moral judgment on suicide is impossible, and indeed that

suicide has nothing to fear from an atheistic ethic. The right to suicide is nullified

There is nothing new about the desire of terminally ill patients

to end their suffering by hastening death. Developments in modern

health care have simply brought into the open a previously private

practice that society has long condoned. Until the early part of this

century, patients suffering from incurable conditions over-

whelmingly died at home due to the limitations of the health care

system. Their deaths were frequently eased by the ministrations of

alcohol and opiates.'* Indeed, opiates (including morphine), which

lead to death in excessive doses, were availeble without prescription

until 1914. Thus, terminally ill patients had at their disposal

throughout the Nation’s early history the means of hastening death

in a certain and gentle manner when their pain became

unendurable.

With the regulation of morphine and other opiates during the

last century, this gentle quitting of a life ravaged by terminal

disease became dependent on the aid of compassionate physicians.

The evidence shows that, despite the strictures of the criminal law,

many physicians have long been willing to provide such

assistance.'® They do so in response to an undeniable reality. More

recent advances in medicine, which have dramatically increased the

life span of the terminally ill, have also stretched out the “death

span,” prolonging the agony of the end stages of terminal disease,

only by the living God.” Quoted in P. Baelz, “Suicide: Some Theological

Reflections,” in Battin & Mayo, supra, at 75.

However deeply held such religious views may be, they cannot (without

more) be the basis for government regulation. See Casey, 505 U.S. at 850

(explaining that particular spiritual or moral views concerning a liberty “cannot

control our decision. Our obligation is to define the liberty of all, not to mandate

our own moral code.”); id. at 914 (Stevers, J., concurring in part and dissenting

in part) (“{IJn order to be legitimate, the State's interest must be secular;

consistent with the First Amendment the State may not promote a theological or

sectarian interest.”).

'S Cnaan v. Director, Missouri Dept. of Health, 497 U.S. 261, 339 n.11 (1990)

(Stevens, J., dissenting).

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

Practice of Physician-Assisted Suicide, 44 Hastings L.J. 1290, 1297-99 (1993);

Timothy E. Quill, Death and Dignity: A Case of Individualized Decision Making,

324 New Eng. J. Med. 691, 694 (1991).

9

often accompanied by severe pain, physical deterioration, and

unspeakable indignities.

In sum, a review of this nation’s history and tradition in fact

provides considerable support for recognition of a constitutionally

protected liberty interest in the choice of the terminally ill to bring

an end to their suffering by hastening an inevitable death.

B. The Right of a Mentally Competent, Terminally Ill

Person to Choose an End to Suffering by Hastening an

Inevitable Death Is Implicit in the Concept of Ordered

Liberty.

The right of the terminally ill to hasten their death and escape

intolerable pain is not only grounded in history, it is also implicit

in the very concept of ordered liberty, as this Court has understood

and applied that notion in past decisions. In particular, the

combined force of Planned Parenthood of Southeastern

Pennsylvania v. Casey, 50S U.S. 833 (1992), and Cruzan v.

Director, Missouri Dept. of Health, 497 U.S. 261 (1990), leads to

the conclusion that the right of the terminally ill to quit a life

burdened by intractable pain in a gentle and dignified manner is at

the core of the liberty interests protected by the Constitution.

Cnaan and Casey do not stand alone, however. They represent

only the latest examples of an enduring principle that has found

expression in numerous cases over the years. This Court has

repeatedly protected from state intrusion a set of decisions that go

to the very essence of what it means to be an individual in

command of a personal history and life course — decisions relating

to marriage, family relationships, conception, procreation, child

rearing, education, and the refusal-or termination of life-saving

medical treatment. See Casey, 505 U.S. at 849 (“It is settled

now...that the Constitution places limits on a State's right to

interfere with a person's most basic decisions about family and

parenthood, as well as bodily integrity.”) (citations omitted).

Review of this well-settled line of cases reveals the vital presence

of three distinct, though interrelated, components of “liberty,” each

of which strongly supports a finding of constitutional protection for

the right of the terminally ill to hasten inevitable death.

10

The first and perhaps pre-eminent component of “liberty”

protects the individual's interest in personal dignity and decisional

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

(1977); Roe v Wade, 410 U.S. 113 (1973); Eisenstadt v. Baird,

405 U.S. 438 (1972); Loving v. Virginia, 388 U.S. 1 (1967);

Griswold vy. Connecticut, 381 U.S. 479 (1965); Prince v.

Massachusetts, 321 U.S. 158 (1944). These cases develop the

central notion that liberty only has meaning if an individual is able

to make central decisions concerning his or her own life free from

significant governmental interference. The decision in Casey stands

as the most recent and most cogent articulation of these principles:

These matters, involving the most intimate and personal

choices a person may make in a lifetime, choices central to

personal dignity and autonomy, are central to the liberty

protected by the Fourteenth Amendment. At the heart of

liberty is the right to define one’s own concept of existence,

of meaning, of the universe, and of the mystery of human life.

Beliefs about these matters could not define the attributes of

personhood were they formed under compulsion of the State.

505 U.S. at 851.

It is beyond dispute that the decision to control the end of

one’s life when confronted with terminal illness and intolerable pain

is among the most critical and personal decisions an individual can

make. Indeed, given its profound significance to a person's

individual, familial, moral, spiritual and religious beliefs, it is

difficult to view any other life choice as striking more to the core

of personal dignity and autonomy than the decision of a competent

and suffering terminally ill patient concerning how and when to die.

Both the majority and dissents in Cruzan stressed the fundamental

nature of the choice at issue here. See Cruzan, 497 U.S. at 281

(“The choice between life and death is a deeply personal decision

of obvious and overwhelming finality.”); id. at 310-11 (Brennan,

J., dissenting) (“Dying is personal. And it is profound. For many,

the thought of an ignoble end, steeped in decay, is abhorrent. A

quiet, proud death, bodily integrity intact, is a matter of extreme

consequence.”); id. at 343 (Stevens, J., dissenting) (“Choices about

death touch the core of liberty. Our duty, and the concomitant

freedom, to come to terms with the conditions of our own mortality

are undoubtedly ‘so rooted in the traditions and conscience of our

people as to be ranked as fundamental.’... [NJot much may be said

with confidence about death unless it is said from faith, and that

alone is reason enough to protect the freedom to conform choices

about death to individual conscience.”) (citations omitted).

The second component of “liberty” to be found in this Court's

cases involves bodily integrity. The line of cases supporting this

component arose primarily in the context of medical procedures,

and a person’s right to direct the course of his or her own

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

Winston v. Lee, 470 U.S. 753 (1985); Schmerber v. California,

384 U.S. 757 (1966); Rochin v. California, 342 U.S. 165 (1952);

Jacobson v. Massachusetts, 197 U.S. 11 (1905). Here the Cruzan

decision makes the latest and most germane statement about the role

of bodily integrity in liberty. The majority in Cruzan explained that

this Court’s precedents indicate that “a competent person has a

constitutionally protected liberty interest in refusing unwanted

medical treatment,” 497 U.S. at 278, and Justice O'Connor in

concurrence stressed that “our notions of liberty are inextricably

entwined with our idea of physical freedom and self-determination

....” 497 U.S. at 287 (O'Connor, J., concurring).

Cruzan stands for the proposition that the bodily integrity

component of liberty, which encompasses the right to direct one’s

own medical treatment, is so fundamental that it is to be honored

even when the consequence of the choice is hastening an

individual's death. Accordingly, this component of liberty must

extend to persons like the patient-plaintiffs who, with their lives

ending and their bodies wracked with pain, sought the means to

preserve their dignity and control over their bodily integrity by

obtaining prescribed medication to terminate their suffering."’

'’ Though the United States finds that “Cruzan supports the conclusion that a

liberty interest is at stake in this case,” Govt. Br. in Glucksberg at 15, it also

suggests that this case does not involve Cruzan's interest in “avoiding invasions

of bodily integrity.” Jd. at 16. Such a view misses the reality of those who seck

to exercise the nght al issue here. Like the patient-plaintiffs in these cases, dying

patients seeking to hasten death are typically in excruciating pain and often

15; cf. Estelle v. Gamble, 429 U.S. 97, 104 (1976). Casey

acknowledges that the ability to seek relief from pain is a

component of the “liberty” protected under the Due Process Clause

in directing one’s own life course that are also the province of the

Due Process Clause:

The mother who carries a child to full term is subject to

anxieties, to physical constraints, to pain that only she must

to insist, without more, upon its own vision of the woman's

role.... The destiny of the woman must be shaped to a large

physically incapacitated, frequently their entire bodily existence is conscripted by

the demands and relentless assaults of an incurable disease To suggest that such

persons’ “bodily imtegrity” is unaffected if they are denied the opportunity to seek

medication to bring thei suffering to an end — and are thereby forced to continue

an existence which they view as a torment — evinces a remarkably hollow con-

ception of the right to bodily integrity. Of course, this Court's precedents

encompass a much fuller conception of bodily integrity. As Casey made clear

when it held that denia! of access to the medical procedure of abortion touches

“upon the very bodily integrity of the pregnant woman,” 505 U.S. at 896, this

Court has recognized an mterference with a liberty mterest whenever persons have

particular courses of medical treatment thrust upon them or denied to them

contrary to their interests or consent. Sec, ¢.g., Washington, 494 U.S. at 229;

Jacobson, 197 U.S. at 24-30, see also Vitek v. Jones, 445 U.S. 480, 494 (1980);

Parham v. J.R., 442 U.S. 584, 600 (1979).

13

extent on her own conception of her spiritual imperatives and

her place in society.

505 U.S. at 852.

The same principle applies where a state prohibition relegates

competent, terminally ill individuals to continue to suffer acute pain

without the option of a gentle, hastened death. Like the pregnant

woman's decision, the decision of a terminally ill individual to quit

life in the face of unendurable pain and certain death is too

intimate, too personal, and too central to the totality and meaning

of that person’s life for the State to impose its own philosophical

and moral imperatives upon that decision. Indeed, the personal

stories of the patient-plaintiffs plainly illustrate the extent of the

suffering at stake in these cases." The United States properly

recognizes this “significant liberty interest” in its brief, noting that

“it persists even at the point at which avoiding severe pain and

suffering coalesces with ending life.” Govt. Br. in Glucksberg at

16. This view resonates fully with the decision in Cruzan, which

* Washington notes that respondents and their supporting amici placed before

the Courts of Appeals numerous “anecdotes” of the terminally ill who wished to

hasten their death and avoid painful, undignified and inhumane endings to their

lives. The State of Washington urges that this Court not make constitutional

decisions based on “anecdotes.” See Washington Br. at 18. But these personal

stories, though brief and obviously inadequate to portray essentially indescribable

human suffering, are meant to help the Court to conjure the unimaginable pain and

suffering expenenced by those who might avail themselves of the right urged here.

As the United States acknowledges, see Govt. Br. in Glucksberg at 18 & n.1, an

irreducible core of terminally il] patients (including an estimated 10% of all cancer

patients) cannot obtain relief through palliative treatment but are trapped in

physical agony. In some cases, pain cannot be controlled even with full and

appropriately timed doses of narcotics; in other cases, the toxic effects of the

palliative agents may be intolerable. See Howard Brody, Assisted Death — A

Compassionate Response to Medical Failure, 327 New Eng. J. Med. 1385 (1992).

Moreover, the invocation of the capabilities of modern palliative medicine ignores

the subjective nature of suffering; the diminished fortitude in the face of suffering

when all hope of recovery is gone; the practical reality that pain can often only

be allayed, if at all, at the cost of mental alertness; and the loss of dignity that

accompanies physical deterioration. In these circumstances (the “anecdotes” that

respondents and their amici place before the Court), compassion and the

Constitution dictate that these terminally ii] patients not be denied thew wish for

a hastened and gentile death.

14

teaches that a liberty interest persists even to the point where an

individual decides to hasten his or her death through the refusal of

life-sustaining treatment.'*

These three components of “liberty,” all recognized by this

Court as hallmarks of “the concept of ordered liberty,” forge a

strong base of constitutional support protecting the right of a

competent, terminally ill person to choose to end suffering by

gently hastening death. To deny constitutional protection for this

right would undermine concepts of liberty and autonomy previously

recognized as sacrosanct. “Making someone die in a way that

others approve, but he believes a horrifying contradiction of his

life, is a devastating, odious form of tyranny.”” The right to define

the limits of one’s endurance in the face of terminal iliness and to

embrace a swifter, more gentle death, should be recognized as an

essential component of liberty under the Due Process Clause.

A BLANKET PROHIBITION AGAINST AID

TO SUICIDE UNDULY BURDENS THE RIGHT

OF THE TERMINALLY ILL TO MAKE

RATIONAL END OF LIFE DECISIONS

If this Court determines that the right of the terminally ill to

escape intolerable pain and suffering through hastening death is a

liberty interest protected by the Fourteenth Amendment, there can

be little doubt that the laws at issue here “operate as a substantial

obstacle” to the exercise of that constitutionally protected personal

liberty interest. Casey, 505 U.S. at 895.

Amici acknowledge that the states have a significant interest in

the preservation of life that permits them to regulate, even quite

extensively, the exercise of the right of the terminally ill to choose

* In Cruzan, this Court noted that the “logic of [prior] cases” would extend the

liberty interest in refusing medical treatment to refusing “the forced administration

of life-sustaining medica! treatment, and even of artificially delivered food and

water essential to life.” 497 U.S. at 279.

® Ronald Dworkin, Life's Dominion: An Argument About Abortion, Euthanasia,

and Individual Freedom 217 (1993).

15

the time and manner of their death. Indeed, such regulation is

undoubtedly appropriate to ensure that the right at issue here is not

misused. This case, however, does not involve regulation, but

prohibition. And, in this context, it is undeniable that an absolute

ban on obtaining assistance from a physician unduly burdens the

right of the terminally ill to escape pain by hastening death. Indeed,

for many terminally ill patients, it precludes it entirely.

Furthermore, there are less restrictive alternatives available that

would in fact better serve the interests claimed by the states in this

case.”

A. A Blanket Ban on Assistance to Suicide Is a Substantial

Obstacle to the Right of the Terminally Ill to End Their

Suffering.

A state’s blanket prohibition against aid in dying unduly

burdens the right of terminally ill individuals to end their suffering

and hasten their death, preventing significant numbers of terminally

ill from achieving the release from suffering that they desire and

relegating still others to unacceptable options. Along with improv-

ing and extending life, the advances of modern medicine have

transformed radically the social circumstances of death. Whereas

only a generation ago the vast majority of persons died at home,

now approximately 80% of individuals die in hospitals and long-

term care institutions.” It is, as a practical matter, impossible for

2 This Court has not always employed a single test when weighing the strength

of the state's asserted justification for abridging « fundamental liberty interest. In

Casey, the Court adopted an “undue burden” test that focussed on whether the

challenged regulation placed a “substantial obstacle” in the path of a woman

secking a pre-viability abortion. In other contexts, this Court has emphasized the

need for narrow tailoring. See, ¢.g., City of East Cleveland, 431 U.S. at 499.

Under either formulation, a total ban on physician-assisted suicide cannot be

upheld. As explained below, it clearly represents a “substantial obstacle” to

terminally ill individuals who wish to end their suffering and it is not narrowly

tailored to achieve the state's asserted interests.

2 See Cran, 497 U.S. at 302 (Brennan, J., dissenting); id. at 339-40 (Stevens,

J., dissenting) (“People are less likely to die at home, and more likely to die in

relatively public places, such as hospitals or nursing homes. Ultimate questions

that might once have been dealt with in intimacy by a family and its physician

have now become the concern of institutions.”).

16

the terminally ill who are institutionalized to obtain release from

suffering unassisted; without aid, they are unable to obtain the

means for a swifter death. Moreover, a state’s blanket prohibition

against aid in dying presents an absolute obstacle to those who do

not wish to quit their lives until their terminal illnesses progress to

the point at which they lack the very strength to accomplish suicide

unassisted. One consequence is particularly intolerable. Faced with

increasing weakness and loss of autonomy in the final stages of an

illness, terminally ill patients who have chosen to avoid lengthy and

excruciating deaths are frequently forced to end their lives

prematurely for fear that further loss of strength or intense medical

supervision effectively will deprive them of their choice.

Furthermore, such terminally ill patients often are driven to

end their lives by violent means and entirely alone. Ironically, such

violent means are often legally accessible, whereas the medical

means that might allow the patient to quit life gently are now

inaccessible in the absence of a physician willing to transgress the

law. The fear of implicating one’s friends or family in crime,

moreover, often induces the terminally ill to carry out their resolve

secretly and alone. “he trauma is then magnified for friends and

family who must deal not only with the death, but the gruesome

means employed and the fact that their loved one was forced to

meet death unsupported and alone.”

Other terminally ill individuals determined to end their

suffering frequently turn for help to friends or family members,

who must then choose between love and compassion or the dictates

of the law. Another cruelty caused by the ban on assistance is that

= The ban on physician assistance may not only cause terminally ill individuals

to commit suicide prematurely or preclude a gentle death or one in the company

of friends and family, but it also may frustrate the very desire for certain death

when self-inflicted attempts fail, thereby causing additional and gratuitous

suffering to the tormented patient. See Quill, supra note 16, at 117-20.

* See, ¢.g., K. Frederickson, Torn Mother: | Helped Her Pass On, Oregon

Bulletin, May 16, 1994, at Al (giving account of mother's explanation, after

expiration of statute of limitations, of how she finally acceded to daughter's plea

to assist her suicide after months of watching her wasting from bone cancer in too

much pain to endure even her mother's touch).

17

non-physician assisted suicides are amateurish affairs, always

clandestine and often bungled. One Canadian study of “back-alley

euthanasia” among the Vancouver AIDS population found that one-

half of assisted suicides were botched, perversely increasing —

rather than alleviating — suffering.

B. The States’ Asserted Interests Do Not Justify an

Absolute Ban on Physician Aid in Dying for the

Terminally Ill.

In opposition to this right, Washington and New York invoke

interests in preserving human life, precluding undue influence or

mistake, safeguarding the integrity of the medical profession and a

concern over the “slippery-slope” — i.e., that line-drawing in this

area will prove impossible. These interests and concerns, however

legitimate, do not justify an absolute ban on physician aid in dying

for terminatly ill persons and should not outweigh the recognized

right of a competent, terminally ill individual to end his or her

suffering.

1. Interest in Preserving Each Citizen’s Life

First, as this Court has determined, a state’s interest in the

preservation of every citizen's life, such as that asserted by New

York and Washington here, abstracted from the value that a

particular person may place on the continuation of that life, cannot

outweigh a terminally ill individual's choice to end suffering and

quit a life burdened by intractable pain and irreversible disinte-

gration. See Casey, 505 U.S. at 857 (“[A] State’s interest in the

® Sec Clyde H. Farnsworth, Vancouver AIDS Suicides Botched, N.Y. Times.

June 14, 1994, at C12. For example,

In five cases, victims were unsuccessfully suffocated. In one case, the people

who assisted in the suicide resorted to slitting the victim's wrists with a razor

blade and in another case to shooting him. Two were injected with pure

heroin. Many of the acts of euthanasia took several hours or longer to be

completed. In one case it took four days.

Id.; see also Gina Kolata, AIDS Patients Seek Solace in Suicide But Many Risk

Added Pain in Failure, N.Y. Times, June 14, 1994, at C1 (reporting on man who,

in trying to bring on a gentle death by smothering his lover with pillow,

asphyxiated him only enough to destroy most of his brain function).

protection of life falls short of justifying any plenary override of

individual liberty claims.”).*

Second, the pitiless process by which many terminally ill

persons die — the unremitting pain, the erosion of privacy and

dignity, the loss of control over basic bodily functions — leads

some to conclude that the burden of their corporeal existence

degrades the very humanity it was meant to serve. In choosing to

end their suffering, the terminally ill do not repudiate an interest in

life but seek to affirm a meaningful life with a dignified death.”

In these circumstances, a state may not insist that the

terminally ill endure the unendurable in order to promote the state’s

abstract interest in the preservation of life. To do so is to appro-

priate an individual's existence, and to prolong cruel and unusual

torment, for the purpose of proselytizing the state’s preferred

philosophical view of life. This a state may not constitutionally

do.

* In Cruzan, the majority stated :

we think a State may properly decline to make judgments about the “quality”

of life that a particular individual may enjoy, and simply assert an unqualified

interest in the preservation of human life to be weighed against the constitu-

tionally protected interests of the individual.

497 U.S. at 282. Indeed, a state has no other choice. More specifically, a state

cannot make determinations about the worth or quality of an individual's life and

then rely on that determination as a basis for making life or death decisions. For

the terminally ill, the meaning of life and the impact of physical and psychological

agony represent the most personal of judgments that the state may not usurp.

ad As Justice Stevens noted, an interest in life “includes an interest in how [one]

will be thought of after ... death by those whose opinions matiered” during life.

“How [one] dies will affect how that life is remembered.” Cruzan, 497 US. at

helplessness may reasonably reject the prospect of a long vigil where family and

friends loyally and lovingly witness their disintegration. The terminally ill

reasonably may assert an interest in being remembered for how they lived rather

than the excruciating, relentless and lengthy process by which they died.

ad A stale may not even use @ person's car as a moving billboard to proselytize

ts views on life's meaning by insisting that the state’s motto appear on citizens’

license plates. See Wooley v. Maynard, 430 U.S. 705 (1977). In the abortion

context, a stale may not insist that a woman carry a not-yet-viable life to term to

effirm the state's view of women’s role or its philosophic view of when life

19

2. Preventing Undue Influence or Mistake

Washington and New York also rely on their interest in

protecting vulnerable citizens. They argue that the right at issue, if

recognized, would be subject to abuse and mistake — that requests

for aid in dying would be mistakenly granted to those not

terminally ill (because incorrectly diagnosed) or to those whose

request was not truly voluntary (due to undiagnosed depression,

lack of capacity, inadequately treated pain, or undue influence from

family or physician).

These concerns, however, are not unique to the present

situation. The risk of abuse or mistake exists in many medical

contexts, including the end-of-life decisions already condoned by

the State. These risks are routinely and appropriately dealt with

through regulation. For example, only an informed competent adult

may consent to an order not to resuscitate. See, e.g., N.Y. Pub.

Health Law §§ 2960 er seq. (McKinney 1993). Similarly, only a

competent principal may appoint a health care agent (who may be

a family member) who has the power to decide not to resuscitate or

to terminate life support for the principal in the event of incapacity.

See, e.g., N.Y. Pub. Health Law § 2981 (McKinney 1993).

Indeed, under applicable state statutes, a finding of competence is

a necessary precondition to the execution of health care directives.”

If the law permits life-ending actions to be taken on the basis

of competence in other medical contexts, there is no reason to

claim that such a determination is impossible in this setting.

Moreover, the recognition of the right to physician aid-in-dying

would better address some of the state’s concerns here. Whereas

the current legal regime may lead the terminally ill to hide their

wish for suicide from their doctor for fear that needed pain

medication may be withheld, recognition of the right to physician

assistance in hastening death would encourage frank discussion

between the terminally ill considering suicide and their treating

begins. See Casey, 505 U.S. at 851. Equally, a state may not promote its view

of the sanctity of life by insisting that a terminally ill individual bear unrelieved

suffering rather than hasten death.

* See generally Compassion, 79 F.3d at 818 (citing numerous statutes).

20

physician. Such discussions necessarily would raise the issue of the

patient's mental state and the pain being experienced, and lead to

the provision of treatment for depression, where warranted, or for

pain, where all available methods have not been tried. Furthermore,

where family or friends have improperly planted the thought of

suicide, involvement of an objective physician would be salutary.

With respect to the concern over mistaken diagnosis (as with

the previous concerns), safeguards short of an absolute ban can be

crafted to minimize the likelihood of misdiagnosis to a very small

order of probability.” Furthermore, the risk is equally present in

other end-of-life decisions already condoned by the state such as the

withdrawal or refusal of life-support by the terminally ill.”

Furthermore, the state’s concerns regarding mistake in the

exercise of the right ignore the consequences of a prophylactic

outright ban on the terminally ill who are unquestionably competent

and unquestionably in the end-stage of terminal disease. These

terminally ill would be left acutely to suffer — having been

foreclosed, as the United States acknowledges, from the “one

condition might have improved if retained on life support, is removed from life

support and allowed to die. Despite such risks (which can be and are minimized

' , : of di ; Grmation), the right to | leath t ,

crane ‘he discontinuation of life support has been vouchsafed to the terminally

21

humane and certain route of escape from pain and suffering.” Govt.

Br. in Quill at 15. These individuals, whose lives have already been

so horribly compromised, cannot be forced to such a sacrifice.

Moreover, the current unregulated practice of assisted suicide

by the terminally ill is clearly more subject to the abuse and

mistake that concern petitioners and their amici. Existing back-alley

methods provide no safeguards at all and thus no assurance that

diagnosis will be accurate, that depression will be identified, and

that undue influence has not been exercised. Yet, if the right

claimed here is not recognized, certain terminally ill patients who

are incapable of enduring further suffering will resort to self-help

or the back-alley methods currently available with all of their

significant risks.

Accordingly, amici urge recognition of the right claimed by

respondents. Amici also support the use of legislative safeguards to

ensure that all requests of the terminally ill for aid in dying are the

product of thoughtful and informed self-determination.*? Petitioners

have offered no persuasive justification to support the need for a

total prohibition.”

® The recommendation of the New York State Task Force, relied on heavily by

petiuioners and their amici, is instructive in this context. In its 1994 report, When

Death ls Sought; Assisted Suicide and Euthanasia in the Medical Context, the New

York State Task Force on Life and the Law unanimously recommended that New

York's statutory ban on assisting suicide be retained due to the risk of abuse and

mustake if physician-assisted suicide for the terminally ill was allowed. In support

of its recommendation, the New York State Task Force, like New York and

Washington herein, focused on requests that were or might be made due to

untreated pain or depression or undue influence. But when confronted with the

specific issue raised by these cases — voluntary requests from the competent and

suffering terminally il] — some Task Force members endorsed assisted suicide as

# means of showing respect for the autonomy, and compassion for the suffering,

of these patients. They preferred, however, that such patients obtain medical help

clandestinely from courageous doctors willing to violate the law. See id. at 141.

Thus, in the circumstances directly and solely at issue here, some members of the

Task Force urged that the New York laws be disobeyed.

= The briefs of petitioners and their supporting amici rely on anecdotes (and

selective studies — which are not uncontradicted — about experiences in another

nation) to argue that regulation could not effectively safeguard the right claimed

here. Notably, these anecdotes do not involve the exercise of the right to the

22

Indeed, several model statutes for physician assistance to the

terminally ill already exist that incorporate procedural safeguards

to screen out inappropriate cases, including requirements of:

witnesses to ensure voluntariness (neither related to the patient nor

involved in his or her treatment); reasonable waiting periods to

preclude rash decisions; confirmation by a second physician of the

terminal diagnosis and that the patient has been receiving proper

palliative care; psychological examination to ensure that the patient

is not suffering from a momentary or treatable depression; and

reporting procedures.™

3. Implicating Doctors in Killing and Slippery-Slope

Arguments

Petitioners and their amici also contend that affirming the

decisions below will lead to the erosion of society’s confidence in

the medical profession by implicating physicians in intentional

killings. But, as the Second Circuit correctly noted, the physician

assistance sought by patient-plaintiffs in this case, “the writing of

a prescription to hasten death ..., involves a far less active role for

the physician than is required in bringing about death through” the

withdrawal of life support. Quill v. Vacco, 80 F.3d 716, 729 (2d

Cir. 1996). Accordingly, the right the patient-plaintiffs wished to

exercise in this case implicates doctors in intentionally killing, and

risks tarnishing their image, no more than does the currently

refusal or withdrawal of life-sustaining treatment which has been effectively

regulated. Instead, petitioners and their amici rely largely on hypothesized

scenarios and anecdotes relating to the clandestine exercise of physician aid in

dying, which at present is illegal and entirely unregulated. Neither these, nor the

disputed experience of another nation, provide a sufficient basis to argue against

the right urged here.

™ See Oregon's Death with Dignity Act, Or. Rev. Stat. §§ 127.800-127.995

(1995), Michigan's Model Statue Supporting Aid-in Dying, appended to the Fina!

Report of the Michigan Commission on Death and Dying (1994); New York,

Senate Bill No. 7986 (May 3, 1994) entitlea “Death With Dignity,” sponsored by

New York State Senators Galiber, Leichter, Markowitz, Smith and Waldon:

Washington Senate Bill 5596 (Jan. 27, 1995) entitled “Terminally Ill Patient Act

of 1995.” Of course, the constitutionality of particular restrictions is not before

the Court since the two state statutes in this case are both total bans.

23

sanctioned practice of removing life-sustaining medical treatment.

See Compassion, 79 F.3d at 828 (“Given the similarity between

what doctors are now permitted to do and what the plaintiffs assert

they should be permitted to do, we see no risk at all to the integrity

of the profession.”). Furthermore, since safeguarding of the right

at issue here will permit and encourage candid discussions of all

available options between the terminally ill and their physicians,

instead of “criminaliziing] the provision of medical assistance to

patients in need,” id. at 827, recognizing the right of the terminally

ill to obtain the relief they seek from their doctors would foster

rather than erode public confidence in the medical profession.

The other argument raised by petitioners and their supporting

amici is that recognition of the right to physician aid in dying urged

here would somehow be uncontainable. These sorts of slippery-

slope arguments can be made in opposition to any constitutional

right (and have been leveled against many recently recognized

rights, including the right to terminate life-sustaining treatment).

Recognition of any right creates the possibility of its abuse; but

petitioners do not raise any cogent concerns that could not be

addressed in ways that stil! allow the right to be exercised.

Finally, Petitioners point to the difficulty in defining the

category of the “terminally ill.” In fact, this term has been used

(and defined) in “living will” statutes in effect in 40 states. See

Compassion, 79 F.3d at 818 & nn.77-78 (listing state statutes).

While the term is not free from difficulty, it has proved workable

and is not problematically vague.”

terminally il) patients who voluntanly request a hastened and gentile death may.

due to the devastating progress of their disease, be unable physically to ingest

medicauon without assistance The question whether the physician's administration

of the medication could be constitutionally prohibited in such a case is not

presently before the Court. Amici, however, agree with the Ninth Circuit that the

crucul question is whether the request is thoughtful and voluntary and, if so, the

terminally il] patient who is physically unable to administer the medication that

24

BECAUSE TERMINALLY ILL PATIENTS ON LIFE

SUPPORT HAVE THE RIGHT TO MEDICAL

ASSISTANCE IN HASTENING DEATH, DENYING

TERMINALLY ILL PATIENTS NOT ON LIFE SUPPORT

MEDICAL ASSISTANCE IN HASTENING DEATH

VIOLATES THE EQUAL PROTECTION CLAUSE OF THE

The Equal Protection Clause mandates that “all persons

similarly circumstanced shall be treated alike.” Royster Guano Co.

v. Virginia, 252 U.S. 412, 415 (1920). The Second Circuit recog-

nized that, with respect to the decision to end intolerable

by hastening an inevitable death, all terminally ill persons are

ae

prevented from obtaining the necessary aid. See Compassion, 79 F.3d at 831-32.

The fact that the right urged here may one day properly be extended to include

such a case is no cause for alarm. | bears no relation to the entirely speculative,

mghtmare scenanos pained by certain :m:ci supporting petitioners. that the nght

urged here — a right of the individual against the state for release from the

unendurable ravages of termina! disease — somehow will metamorphosize into

the ability of society to act against the individual and do away with those whose

lives are no longer valued Such dark fantasies should be disregarded.

25

similarly situated, whether or not on life support. But, by denying

Only those not on life support access to a medical means to achieve

their desired end, “New York law does not treat equally all

competent persons who are in the final stages of fatal illness and

wish to hasten their deaths.” Quill v. Vacco, 80 F.3d 716, 727 (2d

Cir. 1996). Accordingly, New York's laws (and their Washington

equivalents) which prohibit only some terminally ill from obtaining

an escape from their pain “are violative of the Equal Protection

Clause.” Jd.

Petitioners argue that there is a constitutionally significant

distinction between the withdrawal of medical treatment (even life-

Sustaining medical treatment) and the release from suffering sought

by the respondents in this case. In fact, as the United States

essentially acknowledges, see Govt. Br. in Quill at 10, 13, and as

the Second Circuit found, see Quill, 80 F.3d at 729-30, there is no

material distinction between the patient's choice in either case or

between the physician's involvement in accomplishing that choice.

In both cases the patient is making the decision to curtail

weeks or months of suffering in the face of further devastation and

certain death. Terminally ill patients who requesi the discontinuance

of life-sustaining treatment, like the terminally ill patient-plaintiffs

who by this action sought to hasten death by consuming drugs

prescribed for this purpose, have made a conscious decision to die

and seek medical assistance to accomplish their desire.” The

medical assistance required to implement this choice is far greater

(both in terms of quantity of activity and causal nexus to death)

than the prescription of medication to be self-administered by the

terminally ill. In the case of the withdrawal of life support, the

physician must remove the medical machinery sustaining life,

morphine or barbiturates to ease the pain that would otherwise

* See Quill, 80 F.3d at 729 (citing Cruzan, 497 U.S. at 296-97 (Scalia, J.,

concurring)).

26

attend such a death. These medications typically must be

administered in doses that in fact precipitate an even earlier death.”

Thus the Talmudic distinction petitioners press between the

allegedly “natural” death accomplished by withdrawing |life-

sustaining treatment and the allegedly “unnatural” deaths sought

here, is not sustainable. In both cases the motive force is the

patient's intention to hasten impending and certain death and in

both cases the physician provides the medical assistance to ensure

that the patient's desire can be accomplished in a certain, gentle and

medically supervised manner. As the Second Circuit rightly

concluded in Quill, the withdrawal of life-sustaining treatment by

the physician is not “passive” assistance to that desire nor does it

allow for a “natural” death. See 80 F.3d at 729.

Petitioners’ specious distinction between, and undue emphasis

upon, natural and unnatural deaths has warped treatment decisions

made by compassionate doctors wishing to respond to requests from

terminally ill patients who are not on respirators or receiving

artificial nutrition and hydration but who, nonetheless, have reached

the limit of their endurance. In such cases, physicians sometimes

have aided these patients by contriving a death that mimics those

regarded by petitioners as “natural.” This practice, sometimes

referred to as terminal sedation, involves medicating the patient into

a sleep-like state until the patient dies of starvation or dehydration,

days or perhaps weeks later. See AMA Br. in Glucksberg at 10:

Resp. Br. in Quill at section I11.B.

” The Second Circuit's discussion of this point bears repeating.

[T]he writing of a prescription to hasten death, after consultation with a

Quill, 80 F.3d at 729.

27

Indeed, as part of palliative care for the terminally ill, doctors

routinely have supplied the causal agent of patients’ deaths under

the doctrine of “double effect.” Where the terminally ill suffer

from intractable pain in the final stages of disease, doctors

sometimes will choose to administer an intravenous morphine drip

that eases suffering by inducing a sleep-like state and also hastens

death by suppressing respiration; as with terminal sedation, death

may be precipitated in a matter of days. Medical ethicists and the

Catholic Church justify action such as terminal sedation and

morphine drips on the ground of the “double effect,” reasoning that

the physician’s operative intent is to relieve pain, while death is

regarded as a foreseen but unintended consequence.

But the patients at issue in these cases also seek a release from

suffering, and also believe that such relief can only be accom-

plished by their deaths. There is no constitutionally cognizable

reason that the prescription of medication to eliminate suffering and

achieve a peaceful death can only be legally permissible where

death is accomplished gradually (by starvation, dehydration or

asphyxiation) while the patient is put into a twilight zone that can

last days or weeks. This option, where one is subject to the

unknown sensory experiences and state of consciousness that might

attend such a drug induced coma, while one’s loved ones stand

vigil for days or weeks, may appear a monstrous and horrifying

prospect to the terminally ill who wish for a certain and gentle

death.

Moreover, the practice of terminal sedation and intravenous

morphine drip places the decision in the hands of doctors rather

than patients.“ Amici urge that the right pressed here — which is

28

also meant to relieve suffering by hastening inevitable death —

better serves the needs and autonomy interests of terminally ill

patients.

The distinction urged by petitioners between the competent

terminally ill who wish to die and those who wish to terminate life-

Sustaining treatment (or who are willing to undergo terminal

sedation) certainly cannot survive the heightened scrutiny required

when fundamental rights are at stake and, as the Second Circuit

found, its very rationality is difficult to ascertain.” In short,

because a complete ban on the prescription of medication to

competent terminally ill patients who wish to hasten death does not

serve the state’s expressed interest as well as would appropriately

drawn regulations, it is violative of the Equal Protection Clause.

» Interestingly, the United States suggests that this Court need not be especially

vigilant in reviewing the state's line drawing here because “[t}erminal illness docs

not single out any discrete or insular minority; it potentially affects all

Americans.” Govt. Br. in Glucksberg at 31-32. On this basis, the United States

asserts that “there is every reason lc believe that the state legislatures will address

the competing interests in an impartial and unbiased way,” and also contends that

“there is no indication that the political processes ere malfunctioning " Id at 31

& n.3. This argument fails, of course, if # fundamental liberty interest is at stake

because, in that circumc‘ance, heightened scrutiny is required regardiess of

whether a discrete and insular majority is involved

Furthermore, as « matter of practice, it is difficult to put faith in the political

Processes which have traditionally not acted to safeguard the right of the

terminally ill to escape pain through a gentle, hastened death while prosecutors,

courts and junes have never meaningfully punished anyone for helping the

terminally ill exercise this right. See supra p. 7 & nn.12-13. This disjunction

between the law on the books and the law in enforcement bespeaks a mai-

functioning of the political process.

29

CONCLUSION

For the foregoing reasons, Amici respectfully request that the

judgments of the Courts of Appeals be affirmed and that the New

York and Washington statutes prohibiting physician-assisted suicide

be declared unconstitutional as applied to mentally competent,

terminally ill persons requesting such aid tc escape unendurable

suffering.

Respectfully submitted,

KAREN E. BOXX CAMERON CLARK

KELLER ROHRBACK (Counsel of Record)

1201 Third Ave., Suite 3200 CLAUDIA L. HAMMERMAN

Seattle, WA 98101 DOUGLAS A. BERMAN*

(206) 623-1900 1285 Avenue of the Americas

New York, NY 10019

Of Counsel: (212) 373-3000

STEVEN R. SHAPIRO

AMERICAN CIVIL LIBERTIES

UNION FOUNDATION

132 West 43rd Street

New York, NY 10036 *Awaiting admission to the Bar of the

(212) 944-9800 Ste of New Vor

Dated: December 10, 1996

lO — _

Appendix

INTERESTS OF AMICI CURIAE

The American Civil Liberties Union (“ACLU”) is a

nationwide, nonprofit, nonpartisan organization with nearly 300,000

members dedicated to preserving the principles of liberty and

equality embodied in the Constitution. Since its founding in 1920,

the ACLU has participated in numerous cases before this Court. Of

particular note here, the ACLU appeared as counsel in both

Planned Parenthood of Southeastern Pennsylvania v. Casey, 112 S.

Ct. 2790 (1992), and Cruzan v. Director, Missouri Dept. of Health,

497 U.S. 261 (1990). The ACLU of Washington is a state affiliate

of the ACLU and appeared as amicus curiae before the Ninth

Circuit in Compassion In Dying v. Washington.

The National Gray Panthers Project Fund is a civil liberties

advocacy project concerned with social justice for the aging. As

advocates for the aging, the Gray Panthers and their state affiliates

of Washington and New York join in this case, as a friend of the

court, to highlight the right of individuals to make choices about

the quality of their lives.

The Japanese American Citizens League (“JACL”) is a

national civil rights organization founded in 1930, committed to

Strive to secure justice and equal opportunities for all Americans of

Japanese ancestry as well as for all Americans, regardless of race,

District of JACL also joins in this amicus brief as a advocate for

the health care needs, as well as the death with dignity needs of its

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government intrusion. Accordingly, the group defends, amo

other things, the right of terminally ill persons to choose the io

and manner of their death.

The Hemlock Society USA was formed in 1980 to achieve the

egalization of physician aid in dying for terminally ill, mentally

competent adults. It has 25,000 members in 80 chapters and

community groups throughout the country. The New York State

and Washington State affiliates join the national organization in

supporting the right of dying persons to work with their physicians

so that the voluntary request for a hastened death may be part of

the continuum of care available to the terminally ill.

The Euthanasia Research & Guidance Organization

(“ERGO!”), a non-profit educational corporation organized under

the laws of the State of Oregon, was founded in 1993 to lay the

groundwork for the compassionate and just implementation of a

mentally competent terminally ill adult’s decision to hasten death

when the law permits it in America. ERGO promotes safeguards

and Suidelines on legal, medical, and ethical issues so that

physician aid in dying will be put into careful practice. Its goal is

to educate and prepare individuals and institutions, ensuring a

smooth transition when the change in law occurs. ERGO supports

the respondents position that a mentally competent terminally ill

mere right to hasten inevitable death with the assistance of

genthae Counci l is the Washington, D.C. representative

= ~4, commuuity-based organizations and the people living

1 /AIDS they serve across the nation. As the only national

Organization devoted entirely to federal advocacy on behalf of

people living with HIV/AIDS, AIDS Action works to ensure that

effective national initiatives for prevention, care, and research are

developed and implemented which are responsive to and respectful

of the needs of all people living with or at risk of HIV/AIDS In

that regard, AIDS Action supports policies that empower people

living with AIDS to exercise their fundamental right to make

individual decisions about how they live with this disease, including

their right to choose in a dignified and humane way the manner and

time of their death with the assistance of their physicians.

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The Northwest AIDS Foundation is the largest private, non-

profit HIV/AIDS service and education organization in Washington

state. The Foundation is dedicated to ensuring and maintaining the

highest quality of life for persons living with HIV/AIDS,

the spread of HIV and advocating for all those whose

lives have been affected by HIV/AIDS. Knowing the pain their

clients experience as their illness becomes terminal, incapacitating,

and untreatable, the Foundation supports the right of all persons

with a terminal illness to decide for themselves when to end their

own lives and for those individuals to seek assistance in doing so

if they so wish.

The Seattle AIDS Support Groups (“S.A.S.G.”) mission is

to provide emotional support in a group setting (via support groups

and a drop-in center) to persons living with HIV/AIDS and to their

families, friends, and loved ones. The group’s commitment is to

create a safe and supportive environment fostering dignity, fullness

of life and personal empowerment for persons with AIDS. By

fostering dignity and personal empowerment, S.A.S.G. seeks to

validate each individual's own choices about living and dying with

this disease. The group believes that the option to hasten inevitable

death should be a right for all terminally ill persons who elect to

make that choice.

Local 6 of the Service Employees International Union

(“Local 6”) is a labor union representing 10,000 workers in

Washington. As almost every improvement in the condition of

working people has been accomplished by the efforts of organized

labor and as the welfare of workers in Washington can best be

protected and advanced by united action, the mission of Local 6 is

to gather and expend its resources and to unite and empower its

members for the advancement of working people. As a organiza-

tion, Local 6 believes that people should exercise control over their

lives and take responsibility for their decisions.

The mission of Temple De Hirsch Sinai (“Temple”) is to

serve the spiritual needs of its congregation through the observa-

tion, celebration, and study of reformed Judaism. It affirms the

principles of reformed Judaism through its religious services, life

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cycle ceremonies, religion school, social action, and outreach to

individuals and families. The Temple promotes Jewish ideals in

those less fortunate. The Temple's specific interest in this case is

equal treatment of all citizens of this country.

The Older Women’s League (“OWL”) is a national Organi-

zation working to better the lives of all midlife and older women.

One of its agenda items is “Staying in Control Through All of

Life.” OWL works to improve policies and legal means to protect

each individual's decision-making capability affecting quality of life

until its ending. The Seattle/King County Chapter of OWL joins as

amicus to support the right of the terminally ill to decide to end

their suffering.