# Amicus Curiae Brief — Washington v. Glucksberg

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0007%3A58

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 1997
- **Citation:** 521 U.S. 702

## Text

(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

+>
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.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0007%3A58. Public record. Not legal advice.