Amicus Curiae Brief — Washington v. Glucksberg

No. 96-110 (ly

a

Re-tourt, U.S.

FILED

hes DEC 10 19%

Supreme Court of the Huvited States

OCTOBER TERM, 1996

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STATE OF WASHINGTON, CHRISTINE O. GREGOIRE,

Attorney General of Washington,

Petitioners,

—vV—

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

THOMAS A. PRESTON, M.D., and PETER SHALIT, M.D., PH.D.,

Respondents.

ON WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE NINTH CIRCUIT

——————

——

BRIEF OF THE CENTER FOR REPRODUCTIVE

LAW & POLICY AS AMICUS CURIAE

IN SUPPORT OF RESPONDENTS

JANET BENSHOOF

KATHRYN KOLBERT

Counsel of Record

THE CENTER FOR REPRODUCTIVE

LAW & POLICY

120 Wall Street, 18th Floor

New York, New York 10005

(212) 514-5534

Counsel for Amicus Curiae

BEST AVAILABLE COPY!

TABLE OF CONTENTS

I. THE DIFFERENCES BETWEEN THE

LIBERTY INTEREST HERE AND

PLANNED PARENTHOOD V. CASEY

JUSTIFY DIFFERENT STANDARDS

OF REVIEW, BUT DO NOT SUPPORT

PSE CT TT eT Te Oe Tee 4

A. The Ninth Circuit Properly Recognized

the Similarities Between the Liberty

Interest Here and the Right to Choose

Abortion, But Ignored The Important

RA 2 ee ae 4

B. These Differences Do Not Support

Reversal, Because Under Cruzan,

A Terminally-Ill Person Has A

Substantial Constitutionally Protected

Interest In Obtaining Medication To

eS et ee ee eee 13

II. THE STATE INTERESTS DO NOT

JUSTIFY WASHINGTON’S ABSOLUTE

PROHIBITIONS UNDER CRUZAN’S

BALANCING ANALYSIS ............... 22

CD «00 seat esse eevceks ieee 28

‘

TABLE OF AUTHORITIES

CASES PAGE

Armstrong v. Mazurek, 94 F.3d 566

oe | 9

Ashwander v. TVA, 297 U.S. 288 (19236) ......... \4

ane eae 6 se eiA2 (1996) pers 21

Bolling v. Sharpe, 347 U.S. 497 (19544) «........ 21

Bradwell v. Illinois, 83 U.S. (16 Wall!-) 130 (1873) .. 11

Brown v. Board of Educ. , 347 U.S. 4883 (1954)... .. 22

Bush v. Vera, 116 S. Ct. 1941 (1996)'-- +--+... 65: 10

Church of the Lukumi Babalu Aye v.

City of Hialeah, 113 S. Ct. 2217 ((1993)_ ...... 10

City of Akron v. Akron Ctr. for Reprod@uctive

Health, Inc., 462 U.S. 416 (1983) ) rey eee ree 9

City of Ladue v. Gilleo, 114 S. Ct. 20338 (1994) .... 26

Compassion in Dying v. Washington,

79 F.3d 790 (9th Cir. 1996) (en baaMe) ....... 2, 25

Compassion in Dying v. Washington,

850 F. Supp. 1454 (W.D. Wash. 11994) ....... 28

Cruzan v. Director, Missouri Departme®™ |

of Health, 497 U.S. 261 (1990) ..- +--+ -+>> Passim

Edwards v. Aguillard, 482 U.S. 578 (1987) ....... 10

Frontiero v. Richardson, 411 U.S. 677 (1973) ..... 1]

Griswold v. Connecticut, 381 U.S. 479 (1965) ..... 2]

Harper v. Virginia State Bd. of Elections,

383 U.S. 663 (1966)................... 21

Hoyt v. Florida, 368 U.S. 57 (1962) ........... 11

In re A.C, 573 A.2d 1235 (D.C. 1990) ........ 12-13

In re Baby Boy Doe, 632 N.E.2d 326

(ll. Ct. App. 1994) ...... 6. 13, 25

In re Quinlan, 355 A.2d 647 (N.J.),

cert. denied, 429 U.S. 922 (1976) ......._. 24, 25

Jane L. v. Bangerter, 61 F.3d 1493

(10th Cir. 1995), rev’d on other

grounds sub nom. Leavitt v. Jane L..

116 S. Ct. 2068 (1996) ..........000.... 12

J.E.B. v. Alabama ex rel. T_B.,

114 S. Ct. 1419 (1994)... 10-11

Lee v. Weisman, S05 U.S. 577 (1992) .......... 21

Loving v. Virginia, 388 U.S. 1 (1967) .......... 21

Miller v. Johnson, 115 S. Ct. 2475 (1995) ......_. 10

Planned Parenthood v. Danforth,

428 U.S. 52 (1976) .................. 9-10

iv

Planned Parenthood of Southeastern

Pennsylvania v. Casey,

Bs ee ee passim

Prince v. Massachusetts, 321 U.S. 158 (1944) ...... 6

Reno v. Flores, 507 U.S. 292 (1993) ........... 14

Riggins v. Nevada, 504 U.S. 127 (1992) ... 5, 23, 27-28

Rochin v. California, 342 U.S. 165 (1952)... .... 5, 20

Roe v. Wade, 410 U.S. 113 (1973) .......... passim

Shaw v. Hunt, 116 S. Ct. 1894 (1996) .......... 10

Thornburgh v. American College of

See SE 6 o-oo 5 boo u's 6 60 S20 12

Union Pacific Ry. Co. v. Botsford,

See We ENG Gaeweeiécéewesesee 4,19

United States v. Salerno, 481 U.S. 739 (1987) ..... 13

United States v. Virginia,

116 S. Ct. 2264 (1996) .......... 2, 10, 11, 22

Washington v. Harper, 494 U.S. 210 (1990)... .... 20

West Virginia State Bd. Of Educ. v. Barnette,

a ee eee 21

Winston v. Lee, 470 U.S. 753 (1985) .......... 5, 20

Vv

Women’s Medical Professional Corp. v. Voinovich,

911 F. Supp. 1051 (S.D. Ohio 1995),

appeal docketed, Nos. 96-3157, 96-3159

GU cu Svc kcweccceccce 12

CONSTITUTIONAL PROVISIONS

United States Constitution,

Fourteenth Amendment ............... passim

founded in 1992, is an neapusderh non-profit legal

eS a ey Saree oe oe

U.S. 678 (1977), Colautti v. Franklin, 439 U.S. 379

(1979), Bellotti v. Baird, 443 U.S. 622 (1979), Harris v.

McRae, 448 U.S. 297 (1980), H.L. v. Matheson, 450 U.S.

398 (1981), City of Akron v. Akron Center for Reproductive

Health, 462 U.S. 416 (1983), Bolger v. Young Drug

Products Corp., 463 U.S. 60 (1983), Thornburgh v.

American College of Obstetricians and Gynecologists, 476

U.S. 747 (1986), Bowen v. Kendrick, 487 U.S. 589 (1988),

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

(1989), Hodgson v. Minnesota, 497 U.S. 417 (1990), Rust

v. Sullivan, 500 U.S. 173 (1991), and Planned Parenthood

of Southeastern Pennsylvania v. Casey, SOS U.S. 833

(1992). Because the court of appeals relied heavily on this

Court’s reproductive rights jurisprudence in invalidating

Washington’s assisted suicide statute as applied, amicus has

a vital interest in the outcome of this case.

2

SUMMARY OF ARGUMENT

In holding that Washington’s ban on assisted suicide as

applied to terminally ill patients seeking medication to

hasten death violates the Due Process Clause of the

Fourteenth Amendment, the court of appeals relied heavily

on this Court’s decision in Planned Parenthood of

Southeastern Pennsylvania v. Casey, 505 U.S. 833 (1992),

finding a terminally ill person’s decision to seek medication

to hasten death very similar to the abortion right reaffirmed

in Casey. See Compassion in Dying v. Washington, 79

F.3d 790, 813-14 (9th Cir. 1996) (en banc). While

emphasizing the similarities between the two decisions, the

court of appeals failed to recognize that there are also

important differences that dictate the use of different

standards of review, without affecting the outcome of the

constitutional tests.

Both a woman’s decision to choose abortion as well as

a terminally ill person’s decision to seek medication to

hasten death are deeply personal, weighty choices

concerning an individual’s bodily integrity and autonomy,

and therefore, receive protection under this Court’s

precedents. However, unlike the freedom at issue here, the

decision to choose abortion also has deep connections to a

woman’s ability to shape her family life and her role in

American society, enabling her to break free of stereotypes

that deny her the “equal opportunity to aspire, achieve,

participate in, and contribute to society based on [her]

individual talents and capacities." United States v. Virginia,

116 S. Ct. 2264, 2275 (1996).

Although ignored by the court of appeals, the

differences, coupled with a history of discrimination against

women, justify a different standard of review, but do not

support a different result. Indeed, this Court need not even

3

consider its abortion cases in deciding this case. Because

the Washington statutes cannot be constitutionally applied to

respondents under this Court’s bodily integrity and

autonomy precedents, including this Court’s only decision

concerning an individual’s constitutionally protected

freedom to hasten death, Cruzan v. Director, Missouri

Department of Healti., 497 U.S. 261 (1990), the judgment

of the court of appeals must be affirmed.

This Court’s recognition in Cruzan that an individual

has a protected liberty interest in hastening death by

terminating life-sustaining treatment also applies when a

terminally ill patient is seeking medication to hasten death.

The Constitution’s protection of bodily integrity and

autonomy does not only apply to the refusal of unwanted

treatment. It also encompasses a patient’s freedom to make

decisions concerning one’s body and one’s course of

medical treatment.

Under Cruzan’s balancing analysis, neither of the

asserted state interests justifies Washington’s absolute

prohibition. Where, as here, a terminally ill patient decides

to end his or her life in an effort to avoid intense pain and

anguish, the state interest in protection of life must give

way to that individual’s bodily integrity and autonomy.

Indeed, Washington recognizes, in the context of

termination of life-sustaining treatment, that the interest in

preserving life does not outweigh the individual’s freedom

to make decisions about his life and course of medical

treatment.

Likewise, the State’s legitimate interest in avoiding

mistake and abuse does not support Washington’s absolute

prohibition. Identical pressures are at work where a patient

seeks a physician’s assistance in terminating life-sustaining

treatment as are present when taking medication to hasten

4

death. Because Washington has decided that its legitimate

interests do not support a prohibition on an individual’s

decision to terminate treatment necessary for life, the

State’s claim that regulatory measures will not safeguard

against mistake and abuse is wholly unreasonable and fails

to justify the flat ban at issue here.

ARGUMENT

I, THE DIFFERENCES BETWEEN THE LIBERTY

INTEREST HERE AND PLANNED PARENTHOOD

V. CASEY JUSTIFY DIFFERENT STANDARDS OF

REVIEW, BUT DO NOT SUPPORT REVERSAL.

A. The Ninth Circuit Properly Recognized the

Similarities Between the Liberty Interest Here

and the Right to Choose Abortion, But Ignored

The Important Differences.

Constitutional protection for a woman's decision to

choose abortion and for a terminally ill patient’s decision to

hasten death -- either by seeking medication or terminating

life-sustaining treatment -- finds support in this Court's

decisions affording protection to personal autonomy and

bodily integrity. Over a century ago, this Court recognized

the fundamental importance of an individual’s control over

decisions concerning his or her body. As this Court

explained, “[nJo right is held more sacred, or is more

carefully guarded by the common law, than the right of

every individual to the possession and control of his own

person, free from all restraint or interference of others

...." Union Pacific Ry. Co. v. Botsford, 141 U.S. 250,

251 (1891).

Since Botsford, a long and unbroken line of this

Court’s cases have afforded constitutional protection to an

5

individual’s “most basic decisions about . . . bodily

integrity.” Casey, 505 U.S. at 849. See, e.g., Riggins v.

Nevada, 504 U.S. 127 (1992) (overturning criminal

conviction because defendant was forced to take

antipsychotic drugs during the course of trial); Cruzan, 497

U.S. 261 (recognizing constitutional protection for an

individual’s decision to hasten death by terminating life-

sustaining treatment); Winston v. Lee, 470 U.S. 753 (1985)

(invalidating surgical removal of a bullet from a robbery

suspect); Rochin v. California, 342 U.S. 165 (1952)

(invalidating stomach pumping of criminal suspect in search

for drugs). Contrary to the State’s argument, these

decisions not only protect the individual against forced

bodily invasion by the government; they also protect an

individual’s freedom to make decisions concerning his or

her body, including the decision affirmatively to seek

desired medical treatment.

In Casey, this Court recognized that a woman’s right to

choose whether to obtain an abortion or carry her

pregnancy to full term flows, in part, from these established

constitutional principles of bodily integrity and autonomy.

See Casey, 505 U.S. at 857 (noting that constitutional

protection for the abortion decision is a “rule .. . of

personal autonomy and bodily integrity, with doctrinal

affinity to cases recognizing limits on the power to mandate

medical treatment or to bar its rejection"); id. at 927

(Blackmun, J., concurring in part and dissenting in part)

("compelled continuation of pregnancy infringes on a

woman’s right to bodily integrity"). Likewise, in Cruzan,

eight members of this Court affirmed that the constitutional

protections of bodily integrity and autonomy applied to an

individual’s decision to hasten death by terminating life-

sustaining treatment. See Cruzan, 497 U.S. at 278-79; id.

at 287-89 (O’Connor, J., concurring); id. at 304-12

(Brennan, J., dissenting); id. at 331, 339-43 (Stevens, J.,

6

dissenting). The same is true here. See infra § 1.B.

But unlike the freedom in Cruzan, the right to choose

abortion does not solely rest on bodily integrity and

autonomy. The Constitution also protects the right to

choose abortion because it is a part of the “private realm of

family life that the state may not enter." Prince v.

Massachusetts, 321 U.S. 158, 166 (1944). Noting that

"fojur law affords constitutional protection to personal

decisions relating to marriage, procreation, contraception,

family relationships, child rearing and education,” Casey,

505 U.S. at 851, this Court in Casey explained that "[t]hese

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." /d.

In finding that the Constitution’s protection of personal

privacy included the right to choose abortion, the Court

emphasized two points. First, this Court recognized that

the decision to choose abortion "is of the same character as

the decision to use contraception,” and the Constitution

protects both choices “because they involve personal

decisions concerning not only the meaning of procreation

but also human responsibility and respect for it." Jd. at 852,

853. Second, the Court stressed that women need to be free

to choose abortion in order to shape their destiny and role

in American society. As the Casey majority explained:

[T]he liberty of the woman is at stake in a sense

unique to the human condition and so unique to the

law. The mother who carries a child to full term is

subject to anxieties, to physical constraints, to pain

that only she must bear. That these sacrifices have

from the beginning of the human race been

endured by a woman with a pride that ennobles her

7

in the eyes of others and gives the infant a bond of

love cannot alone be grounds for the State to insist

she make the sacrifice. Her suffering is too

intimate and personal for the State to insist,

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

role, however dominant that vision has been in the

course of our history and culture. The destiny of

the woman must be shaped to a large extent on her

own conception of her spiritual imperatives and her

place in society.

Id. at 852; see also id. at 856 ("The ability of women to

participate equally in the economic and social life of the

Nation have been facilitated by their ability to control their

reproductive lives.").

These differences justify the stronger, more protective

standard of review applicable in abortion cases, and

distinguish the Casey standard from the balancing analysis

applied by this Court in Cruzan. In Casey, recognizing that

State regulation of the abortion choice is "doubly deserving

of scrutiny,” id. at 896, as it “touche[s] not only upon the

private sphere of the family, but upon the very bodily

integrity of the pregnant woman," id., the joint opinion

fashioned the two-pronged undue burden test to determine

the validity of state statutes restricting a woman's right to

choose abortion before viability.

Although different from the traditional form of strict

scrutiny, the undue burden test requires courts to engage in

heightened scrutiny of state abortion regulations, mandating

a searching inquiry into both the purpose and effect of state

abortion regulations. As the joint opinion explained, under

the undue burden test, a statute is an unconstitutional

limitation on a woman’s right to choose abortion if it has

the purpose or effect of placing a substantial

obstacle in the path of a woman seeking an

abortion of a nonviable fetus. A statute with this

purpose is invalid because the means chosen by the

State to further the interest in potential life must be

calculated to inform the woman’s free choice, not

hinder it. And a statute which, while furthering

the interest in potential life or some other valid

State interest, has the effect of placing a substantial

obstacle in the path of a woman’s choice cannot be

considered a permissible means of serving its

legitimate ends.

Id. at 877.

The two prongs of the undue burden test function

together to ensure that the state does not impose

unnecessary and arbitrary obstacles to a woman’s decision

to choose abortion before viability. Under the "effect"

prong, an abortion regulation that imposes a substantial

obstacle in the path of a woman’s decision to choose

abortion is invalid. Under this standard, a state’s

prohibition of abortion is, of course, unconstitutional. /d. at

846, 879. But the “effects” prong of the undue burden test

also bars states from passing restrictive regulatory

measures. State regulations that deter women from seeking

abortions through burdensome restrictions on the right to

choose abortion are unconstitutional. See id. at 893-94

(finding that husband-notification provision imposes an

undue burden because it is “likely to prevent a significant

number of women from obtaining an abortion. ... We

must not blind ourselves to the fact that the significant

number of women who fear for their safety and the safety

of their children are likely to be deterred from procuring an

abortion as surely as if the Commonwealth had outlawed

abortion in all cases.").

9

The Casey undue burden standard, however, does not

limit the Constitution’s protections to those laws that have

the effect of imposing a substantial obstacle on a woman's

right to choose abortion. Because of the higher threshold

necessary to establish that an abortion regulation has the

effect of imposing an undue burden on a woman’s right to

choose abortion,’ the Casey joint opinion establishes a

second limitation on state power to restrict abortion,

recognizing that the “effect” test alone would not adequately

protect the woman’s right to choose. The “purpose” prong

seeks to ensure that state regulation of abortion furthers

legitimate state objectives -- such as enhancing and

informing a woman's abortion decision -- not the

impermissible end of hindering her choice. Even where it

imposes no substantial obstacle on a woman’s decision to

terminate her pregnancy, a state regulation enacted with the

illegitimate purpose of making abortions more difficult to

obtain are invalid. See Armstrong v. Mazurek, 94 F.3d

566, 567 (9th Cir. 1996) (noting that “one proper inquiry"

under Casey’s purpose prong “is whether ‘the requirements

serve no purpose other than to make abortions more

difficult’”) (quoting Casey, 505 U.S. at 901); cf Planned

Parenthood v. Danforth, 428 U.S. 52, 79 (1976)

(invalidating ban on saline abortions as “an unreasonable or

' By contrast, before Casey, any statute that imposed a non-de minimis

burden on the right to choose abortion triggered strict scrutiny,

requiring the state to prove that an abortion restriction was narrowly

tailored to achieve a compelling state interest. See id. at 871; City of

Akron v. Akron Ctr. for Reproductive Health, Inc., 462 U.S. 416, 427

(1983); Roe v. Wade, 410 U.S. 113, 155 (1973). In adopting the undue

burden test, the joint opinion noted that "[t}he very notion that the State

has a substantial interest in potential life leads to the conclusion that not

all regulations must be deemed unwarranted... . [T]he undue burden

standard is the appropriate means of reconciling the State's interest with

the woman's constitutionally protected liberty." Casey, 505 U.S. at

876.

10

arbitrary regulation designed to inhibit . . . the vast

majority of abortions after the first 12 weeks").

As in other areas of this Court’s jurisprudence,

determining whether an unconstitutional purpose is "the

predominant factor motivating the legislature’s decision,"

Miller v. Johnson, 115 S. Ct. 2475, 2488 (1995), requires a

searching and rigorous inquiry into the totality of

circumstances surrounding the legislative enactment. See,

e.g., Bush v. Vera, 116 S. Ct. 1941, 1951-1960 (1996)

(plurality opinion); Shaw v. Hunt, 116 S. Ct. 1894, 1900-

01 (1996); Church of the Lukumi Babalu Aye v. City of

Hialeah, 113 S. Ct. 2217, 2227-2231 (1993); Edwards v.

Aguillard, 482 U.S. 578, 586-89 (1987). As in these other

areas, a long history of persistent state hostility to the

abortion right justifies this rigorous examination of the

purpose of state abortion laws.

This searching standard of review is necessary because

only women bear the burdens of restrictive abortion laws.

As this Court recognized in Casey, restrictive abortion laws

deprive women alone of the freedom to make the deeply

personal and private decision to choose to terminate a

pregnancy, instead forcing them to undergo the serious

bodily intrusions associated with childbirth. See Casey, 505

U.S. at 850-53, 857-59. Casey demands an especially

careful review to ensure that these laws do not impose on

women -- as they have throughout history -- the state’s

“own vision of [her] role," preventing her from shaping her

“destiny . . . and her place in society." /d. at 852. This

need to carefully scrutinize laws that single out women for

burdens resonates with this Court’s equal protection

jurisprudence, see Virginia, 116 S. Ct. at 2274 ("skeptical

scrutiny of official action denying rights or opportunities

based on sex responds to volumes of history"); J.E.B. v.

Alabama ex rel. T.B., 114 S. Ct. 1419, 1433 (1994)

ll

(Kennedy, J., concurring) (noting “strong presumption that

gender classifications are invalid"), and reflects the need to

overcome the continuing effects of our Nation’s “long and

unfortunate history of sex discrimination." Frontiero v.

Richardson, 411 U.S. 677, 684 (1973) (plurality opinion).’

Indeed, this Court in Casey invalidated the husband-

notification provision precisely because it was predicated

upon stereotypical assumptions avout the wife’s role as

mother and homemaker, ratified in cases such as Bradwell

v. Illinois, 83 U.S. (16 Well.) 130 (1873), and Hoyr v.

Florida, 368 U.S. 57 (1962), and the husband’s role as

head and master of the family. See Casey, SOS U.S. at

896-97. This Court recognized that by giving husbands a

to compel their wives to bear children for them, the

had sought to embody into law “the common-law

status of married women [that is] repugnant to our present

understanding of marriage and of the nature of rights

secured by the Constitution.” Casey, 505 U.S. at 898. “A

State may not give to a man that kind of dominion over his

wife that parents exercise over their children." /d.

Es

Because the strength of the state interests change over

the course of a woman’s pregnancy, Casey’s undue burden

? As Justice Ginsburg noted only last Term:

Through a century plus three decades and more of jour]

history, women did not count among voters composing “We

the People"; not until 1920 did women gain a constitutional

right to the franchise. And for a half century thereafter, it

remained the prevailing doctrine, that government . . . could

withhold from women opportunities accorded men so long as

any “basis in reason” could be conceived for this

Virginia, 116 S. Ct. at 2275 (citations omitted).

the

es ta ae ee ee

since i

ecm ciet o dati ee ee

viable, the state’s interest in the protection of viable fetal

life can never override a woman’s substantial liberty

interest in making medical choices about her life and health.

See Casey, 505 U.S. at 879; Thornburgh v. American

College of Obstetricians and Gynecologists, 476 U.S. 747,

768-69 (1986) (invalidating post-viability choice of method

regulation because it failed to “require that maternal health

be the physician’s paramount consideration"); Roe, 410

U.S. at 164-65 (noting that state may not prohibit abortions

after viability where “necessary . . . for the preservation of

the life or health of the mother"); Jane L. v. Bangerter, 61

F.3d 1493, 1504 (10th Cir. 1995) (noting that “[t}he

importance of maternal health is a unifying thread that runs

from Roe to Thornburgh and then to Casey"), rev'd on

other grounds sub nom. Leavitt v. Jane L., 116 S. Ct. 2068

(1996) (per curiam).

In these circumstances, the woman’s interest in making

choices about her life and health trumps any state interest in

preserving the potential life of a viable fetus. The State is

not even permitted to balance the harms to a sick woman

against the interest in the life of the viable fetus. Instead,

the decision “must be left to the discretion of the

individuals involved. Neither the legislature, nor the courts,

has either the legal or the moral authority to balance the

interests and the lives involved, and to make this decision."

Women’s Medical Professional Corp. v. Voinovich, 911 F.

Supp. 1051, 1060 (S.D. Ohio 1995), appeal docketed, Nos.

96-3157, 96-3159 (6th Cir. Feb. 8, 1996); see also In re

A.C, 573 A.2d 1235, 1237 (D.C. 1990) (en banc)

B. These Differences Do Not Support Reversal,

Because Under Cruzan, A Terminally [ll Person

Has A Substantial Constitutionally Protected

Interest In Obtaining Medication To Hasten

While a terminally ill person’s deeply personal decision

Cruzan, this Court considered whether Nancy Cruzan, who

was incompetent and in a persistent vegetative state

following a car accident, had a liberty interest in refusing

treatment that was necessary to keep her alive. In reaching

its conclusion that Ms. Cruzan enjoyed a protected interest,

this Court engaged in a narrow and focused contextual

> Throughout this litigation, petitioners have urged the courts to apply

the standard for a facial challenge set forth in United States v. Salerno,

481 U.S. 739 (1987). Petitioners have now wisely abandoned that

position. Because the court of appeals invalidated the statute as applied,

not on its face, Salerno, by its terms, has no application here.

14

analysis, noting that “in deciding ‘a question of such

magnitude and importance . . . it is the [better] part of

wisdom not to attempt, by any general statement, to cover

every possible phase of the subject.’" Cruzan, 497 U.S. at

277-78 (quoting Twin City Bank v. Nebeker, 167 U.S. 196,

202 (1897)).

As in Cruzan, this Court “must begin with a careful

description of the asserted right." Reno v. Flores, 507

U.S. 292, 392 (1993). The issue here is not, as a general

matter, whether “there is a liberty interest protected by the

Fourteenth Amendment in committing suicide that includes

assistance in doing so," Wash. Br. at 21, but a much

narrower question -- whether the assisted suicide statute is

unconstitutional as applied to terminally ill patients who

seek the aid of a physician in obtaining medication to hasten

their own death.‘

In Cruzan, this Court recognized that the Due Process

Clause of the Fourteenth Amendment protects an

individual’s decision to hasten his or her death by

withdrawing life-sustaining treatment. Surveying both the

common law’ and this Court’s decisions defining the

* Fundamental principles of judicial restraint counsel against resolving

the constitutionality of other applications of these statutes, especially in

the absence of full briefing on these issues. See Ashwander v. TVA,

297 U.S. 288, 346 (1936) (Brandeis, J., concurring) (noting that the

“Court will not ‘anticipate a question of constitutional law in advance of

the necessity of deciding it’") (quoting Liverpool, New York &

Philadelphia Steamship Co. v. Commissioners of Emigration, 113 U.S.

33, 39 (1885)).

* Although this Court in Cruzan began its opinion with a lengthy

discussion of the common law's protection of bodily integrity, this

Court’s opinion did not merely constitutionalize the common law nght.

(continued...)

at 279; id. at 281 oy ines wr agen

interest in refusing life-sustaining treatment”).

Because Missouri did not seek to deprive her of the

ability to end her life by withdrawing life-sustaining

treatment, but merely required that Ms. Cruzan -- like all

other incompetent patients -- offer clear and convincing

evidence that she wanted to withdraw life support, the lead

opinion spent little time analyzing the contours of Nancy

Cruzan’s liberty interest. | Nevertheless, the separate

opinions of the Justices extensively considered whether

Nancy Cruzan had a protected liberty interest. These

opinions guide the analysis here.

Justice O’Connor joined with the four dissenting

Justices in finding that the Constitution protects an

individual’s decision to hasten death by withdrawing life-

sustaining treatment.® Noting that “our notions of liberty

> (...continued)

Instead, the Court sharply distinguished the common law precedents,

noting that state courts have a number of sources of law “not available

to us." Jd. at 277. After examining its own precedents, the Court then

determined that the Constitution protects an individual's decision to

decline life-sustaining treatment. /d. at 278-79.

* Justice Scalia also filed a concurring opinion. Disagreeing with the

majority opinion as well as the separate opinions of Justice O'Connor

(continued...)

16

are inextricably intertwined with our idea of physical

freedom and self-determination,” Justice O’Connor found

that the State’s imposition of life-sustaining medical

treatment on an unwilling competent adult impinged on an

individual's constitutionally protected liberty interests. /d. at

287 (O’Connor, J., concurring). As she explained, “[a]

seriously ill or dying patient whose wishes are not honored

may feel a captive of the machinery required for life-

sustaining treatment or other medical interventions. Such

forced treatment may burden that individual’s liderty

interests as much as any state coercion.” /d. at 288

(O’Connor, J., concurring).

As Justice O’Connor noted, forcing an individual to

remain on life-sustaining treatment is a_ significant

deprivation of liberty for two reasons. First, the

Constitution protects bodily integrity. Id. at 287

(O’Connor, J., concurring) ("the Court has deemed state

incursions into the body repugnant to the interests protected

by the Due Process Clause"). Second, mandating medical

treatment deprives a patient of her decisional autonomy

concerning her body. Id. at 289 (O'Connor, J.,

concurring) ("Requiring a competent adult to endure such

procedures against her will burdens the patient’s liberty,

dignity, and freedom to determine the course of her own

treatment.”).

Moreover, this deprivation of liberty is especially

severe where an individual’s decision to refuse treatment

will hasten his or her death. These private and intimate

* (...continued)

and the four dissenting Justices, he argued that the refusal of life-

sustaining treatment was a form of suicide, and, like all forms of

suicide, received no constitutional protection. /d. at 292-301 (Scalia,

J., concurring).

17

decisions lie at the core of the liberty protected by the Due

Process Clause. As Justice O’Connor explained, “the

liberty guaranteed by the Due Process Clause must protect,

if it protects anything, an individual’s deeply personal

decision to reject medical treatment, including the artificial

delivery of food and water." Jd.

Like Justice O’Connor, Justice Brennan and Justice

Stevens, in dissent, emphasized that forcing an individual in

a persistent vegetative state to use life-sustaining treatment

intrudes on his or her bodily integrity and strikes at the

core of the personal autonomy over intimate and private

matters protected by the Due Process Clause. As Justice

Brennan explained, the Constitution protects an individual's

decision to hasten his or her death by refusing life-

sustaining treatment because “[d]ying 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." /d. at

310-11 (Brennan, J., dissenting).

Justice Stevens sounded this same theme in his separate

dissent:

Choices about death touch the core of liberty. Our

duty, and the concomitant freedom, to come to

terms with the conditions of our mortality are

undoubtedly “so rooted in the traditions and

conscience of our people as to be ranked as

fundamental," and indeed are essential incidents of

the unalienable rights to life and liberty endowed

us by our Creator.

The more precise constitutional significance of

death is difficult to describe; not much may be said

with confidence about death unless it is said from

18

faith, and that is reason alone to protect the

freedom to conform choices about death to

individual conscience.

Id. at 343 (Stevens, J., dissenting) (citations omitted)

(quoting Snyder v. Massachusetts, 291 U.S. 97, 105

(1934)).

Consistent with Cruzan, other decisions of this Court

recognize that the Constitution provides heightened

protection to dying persons. For example, in Roe, even the

dissenters recognized that a state could not prohibit

abortions in all cases; at the very least, a state could not

prohibit a woman from obtaining an abortion where

continued pregnancy would endanger her life. See Roe,

410 U.S. at 173 (Rehnquist, J., dissenting). Thus, then-

Justice Rehnquist recognized that a dying woman is entitled

to stronger constitutional protection than all other women.

The choice, however, remains the woman’s to make. The

State canrot force her to obtain an abortion even where

continued pregnancy will lead to her death.

In an effort to distinguish the protections Cruzan

affords to individuals to hasten their death, the State of

Washington argues that its absolute prohibition does not

implicate a protected liberty interest because it does not

compel anyone to use life-sustaining treatment, but rather,

prohibits terminally ill persons from choosing to take

medication to hasten death. See Wash. Br. at 28-30.

But it is well-established that the Constitution’s

protections of the body are not limited to halting

governmental intrusions into the body. The Constitution

also guarantees decisional autonomy concerning one’s body,

affording individuals both the right to seek and the right to

decline medical treatment. Indeed, this Court’s cases

19

concerning the Constitution’s protection of bodily integrity

have long recognized a close connection between bodily

integrity and personal autonomy. The Constitution protects

against governmental intrusion into one’s body in order to

protect the individual’s freedom to make decisions

concerning her body. As Justice O’Connor explained in

Cruzan, this Court has deemed “state incursions into the

body repugnant to the interests protected by the Due

Process Clause," precisely because “our notions of liberty

are inextricably intertwined with our idea of physical

freedom and self-determination." Cruzan, 497 U.S. at 287

(O’Connor, J., concurring).

Individual self-determination over one’s body is not

limited to the freedom to reject medical treatment. Bodily

integrity and autonomy, if it is to mean anything, must

include a patient’s freedom to choose a course of medical

treatment. After all, “[nJo right is held more sacred. . .

than the right of every individual to the possession and

control of his person, free from all restraint and

interference from others... ." Botsford, 141 U.S. at 251.

Similarly, by prohibiting terminally ill patients from

making the deeply personal decision to take medication to

hasten death, the Washington statute at issue here deprives

these patients of the ability to exercise control over the

manner of their death, their bodies, and “the course of

[their] own medical treatment," Cruzan, 497 U.S. at 289

(O’Connor, J., concurring), often forcing them to endure

anguish and pain until they die. Indeed, for terminally ill

patients, the prospect of death defines their existence and

circumscribes the exercise of their life choices. Because

much of their lives have become focused on preparation for

death, the decision about whether to hasten death is often

one of the few defining decisions that terminally ill persons

may make concerning their lives.

20

Furthermore, Washington’s absolute prohibition on

medical assistance to hasten death leaves terminally ill

patients with only two choices: to remain on treatment

regimes, which often require them to endure intense

anguish and pain, and prolong their life, or to refuse

treatment, thereby causing them even more severe pain. To

many this dilemma leaves terminally ill patients feeling

“captive of the machinery" required for their treatment,

“burdening [their] . . . liberty interests as much as any

direct state coercion.” Id. at 288 (O’Connor, J.,

concurring); see also Washington v. Harper, 494 U.S. 210,

229 (1990) ("The forcible injection of medication into a

nonconsenting person’s body represents a_ substantial

interference with that person’s liberty."); Winston, 470

U.S. at 766 (finding that “the intrusion on [suspect’s]

privacy interests entailed by the [surgical operation to

remove evidence from his body] can only be characterized

as severe"); Rochin, 342 U.S. at 174 (finding that forcible

stomach pumping was “so brutal and so offensive to human

dignity” as to violate due process). By forcing plaintiffs to

undergo these state-mandated harms when their physicians

could provide medication to relieve their pain, once and for

all, the statutes here deprive them of a substantial liberty

interest.

Washington also argues that the Constitution affords no

protection to the decision to seek medication to hasten death

because of the long history of state statutes banning assisted

suicide. Wash. Br. at 21-25. But this Court has long.

rejected the view that the Due Process Clause protects only

those practices historically permitted by the states. The

right to use contraceptives, the right to choose abortion, the

right to marry a person of another race, and the right to be

free of state-mandated segregated schooling are among the

rights protected by the Due Process Clause despite a long

history of statutes denying these nghts. See Roe; Loving v.

21

Virginia, 388 U.S. 1 (1967); Griswold v. Connecticut, 381

U.S. 479 (1965); Bolling v. Sharpe, 347 U.S. 497 (1954).

As this Court explained nearly thirty years ago, "we

have never been confined to historic notions of equality,

any more than we have restricted due process to a fixed

catalogue of what was at a given time deemed to be the

limits of fundamental rights." Harper v. Virginia State Bd.

of Elections, 383 U.S. 663, 669 (1966). “The very purpose

of a Bill of Rights was to withdraw certain subjects from

the vicissitudes of political controversy, to place them

beyond the reach of majorities and officials and to establish

them as legal principles to be applied by the courts." Wesr

Virginia State Bd. Of Educ. v. Barnette, 319 U.S. 624, 638

(1943). The Constitution’s protections “may not be

submitted to a vote; they depend on the outcome of no

elections." Jd. at 638.

Moreover, as this Court has often recognized, relying

exclusively on what the states have legislated in determining

the scope of the Constitution’s protections would imperil

numerous constitutional freedoms recognized by this

Court’s decisions. See Board of County Comm'rs,

Wabaunsee County, Kansas v. Umbehr, 116 S. Ct. 2342,

2350 (1996) (refusing to carve out “a special exception to

our unconstitutional conditions precedents" based on "‘long

and unbroken tradition’" of patronage contracting); Lee v.

Weisman, S05 U.S. 577, 626 (1992) (Souter, J.,

concurring) (noting that if early American history were

“determinative . . . evidence of constitutional meaning, we

would have to gut our current First Amendment doctrine to

make room for political censorship"). As these cases

demonstrate, there are sound reasons for this refusal to

place reliance on historical practice in determining the

scope of the liberty protected by the Due Process Clause.

"A prime part of the history of our Constitution . . . is the

22

story of the extension of constitutional rights and

protections to people once ignored and excluded."

Virginia, 116 S. Ct. at 2287.’

Il. THE STATE INTERESTS DO NOT JUSTIFY

WASHINGTON’S ABSOLUTE PROHIBITIONS

UNDER CRUZAN’S BALANCING ANALYSIS.

In Cruzan, this Court applied a balancing test to

determine whether Missouri could require a showing of

clear and convincing evidence before permitting an

incompetent patient to terminate life-sustaining treatment.

As Chief Justice Rehnquist announced in Cruzan,

“determining that a person has a ‘liberty interest’ under the

Due Process Clause does not end the inquiry; ‘whether

respondent’s constitutional rights have been violated must

be determined by balancing his liberty interests against the

relevant state interests.’" Cruzan, 497 U.S. at 279 (footnote

omitted) (quoting Youngberg v. Romeo, 457 U.S. 307, 321

(1982)).

Unlike the undue burden standard used in Casey to

evaluate restrictions on pre-viability abortions and the more

traditional strict scrutiny standard, Cruzan’s balancing test

is a more flexible standard. A reviewing court must weigh

both the nature and character of the liberty deprivation and

’ Furthermore, the relationship between terminally ill persons and the

state has changed significantly since the initial passage of the assisted

suicide statutes in the 19th century. Because of advances in medicine,

terminally ill persons can now survive, and in some circumstances

endure pain, far longer than in the past, raising bio-ethical issues

uncommon in earlier times. Cf. Brown v. Board of Educ., 347 U.S.

483, 492-493 (1954) ("[W]e cannot turn the clock back to 1868... .

We must consider public education in light of its full development and

its present place in American life throughout the Nation.").

23

the asserted state interests in determining the validity of the

state’s regulation. See Cruzan, 497 U.S. at 279-287. The

rigor of the Court’s review of the state interests depends on

the burden imposed by the statute. Where the individual’s

liberty interest is substantial, the state must come forward

with a correspondingly substantial justification, requiring

the court to consider the possibility of less intrusive

alternatives. See Riggins, 504 U.S. at 134-35 (because

forced injection of antipsychotic drugs is a_ substantial

interference with a convicted prisoner’s liberty interests, a

State must show “overriding justification" to support

forcible medication, including consideration of less intrusive

alternatives).

There can be no question that the statutory prohibitions

here deprive terminally ill persons of a substantial liberty

interest. These statutes bar, without exception, all

terminally ill persons from seeking medication to hasten

death, preventing them from making the deeply personal

decision to hasten death, and depriving them of the power

to exercise control over their bodies in an effort to avoid

the intense and brutal pain caused by their illness. See

supra § 1.B.

In its brief to this Court, Washington offers two

rationales for its total prohibition on this substantial liberty

interest: the protection of human life and the protection of

vulnerable patients from mistake and abuse. See Wash. Br.

at 33-38. Neither of these important interests, however,

supports the complete prohibition at issue here. Moreover,

these interests do not explain or justify the lines drawn by

the Washington legislature.

In Cruzan, this Court considered whether a state could

require a showing, by clear and convincing evidence, that

an incompetent patient desired to withdraw life-sustaining

24

treatment before terminating such treatment. In considering

that regulatory measure, the Court found that the state’s

interest in protecting human life outweighed Nancy

Cruzan’s constitutionally protected liberty interest in

terminating her life by ending life-sustaining treatment

without meeting the requisite burden of proof. Cruzan, 497

U.S. at 280-87. Here, however, the question is not

whether the state can require proof that the patient, as

opposed to some third party, desires to hasten death, but

whether the state can override the clearly expressed wishes

of a terminally ill patient who is suffering unendurable pain

in the last days of life. The answer must be no.

This Court’s precedents concerning "personal autonomy

and bodily integrity" have long recognized that a "State’s

interest in the protection of life falls short of justifying any’

plenary override of individual liberty claims." Casey, 505

U.S. at 857 (citing, inter alia, Cruzan). This must

certainly be the case where, as here, the state seeks to

further this interest by preventing terminally ill patients

from ending their life in dignity, in their own way and on

their own terms. Ever since the New Jersey Supreme

Court’s landmark decision in Jn re Quinlan, 355 A.2d 647

(N.J.), cert. denied, 429 U.S. 922 (1976), courts have

refused to force terminally ill patients "to endure the

unendurable, only to vegetate a few measurable months

with no realistic possibility of returning to any semblance of

cognitive and sapient life." Jd. at 663. Instead, as in

Quinlan, the state’s interest in preserving life "weakens and

the individual’s right to privacy grows as the degree of

bodily invasion increases and the prognosis dims." /d. at

664. Where, as here, the life of a terminally ill person is

nearing its end and that person is suffering from intense

pain, that individual’s substantial liberty interest in bodily

25

integrity surely must “overcome the State interest." /d.*

Moreover, Washington itself recognizes, in the context

of a patient’s request to terminate life-sustaining treatment,

that the interest in preserving life must give way to the

individual’s right to control his body and die with dignity.

By court decision and statute, Washington law permits a

terminally il] patient to hasten death by refusing life-

sustaining treatment or by directing physicians to remove

such treatment. See Compassion in Dying, 79 F.3d at 817-

18 (reviewing legislative enactments and caselaw). These

Statutes and court decisions, which recognize that the state’s

interest in the preservation of life cannot justify overriding

the wishes of a terminally ill person who seeks to hasten his

* Despite the differences in the right at stake and the state interests, this

Court has struck a similar balance in its decisions from Roe to Casey,

finding that the state's interest in the potential life of a viable fetus

cannot outweigh a woman's decisions concerning her life or health. See

supra at 12-13. Rather than permitting the state to override a woman's

decisional autonomy in these matters, the Constitution makes the woman

N.E.2d at 332 ("[A] woman's right to refuse invasive treatment,

derived from her rights to privacy, bodily integrity, and religious

liberty, is not diminished during pregnancy. The woman retains the

same to refuse invasive treatment, even of lifesaving or other

reek, linda that she can exercise when she is not pregnant.").

Ceding to the state the central authority to weigh these deeply personal

matters not only violates the principles of self-determination and

autonomy that generally govern health care decision-making, but strikes

at the heart of the freedom of conscience and religious belief. If the

state's interest in life justified overriding the woman's choice, a state

26

death by terminating life-sustaining treatment, powerfully

undermine Washington’s claim that a total prohibition is

necessary to further its legitimate interest in preserving life.

See City of Ladue v. Gilleo, 114 S. Ct. 2038, 2044 (1994)

(noting that exemptions from ban on homeowners

displaying signs on their property “diminishfes] the

credibility for [speech prohibition] in the first place”

because they show that the city has “determined that some

of the{] [signs] are too vital to be banned"). State

regulatory efforts, like those upheld by this Court in

Cruzan, can strike the proper balance between the

individual’s freedom to control his or her body and die in a

dignified manner and the state interest in preserving life.

Here too, Washington’s statutes and cases recognize that,

for terminally ill patients, decisions concerning whether to

die with dignity are “too vital to be banned.” Gilleo, 114

S. Ct. at 2044.

In an effort to distinguish this body of law, Washington

and their amici argue that there are differences between

terminating life-sustaining treatment and _ prescribing

medication: in one instance, the physician lets the patient

die; in the other, the medication causes the patient’s death.

Wash. Br. at 37-38; U.S Br. at 28 (No. 96-110). This is a

distinction, but not a relevant one for constitutional line-

drawing. It does not explain why the state’s interest in

preserving life must give way to the right of a terminally ill

patient to hasten death by terminating or refusing life-

sustaining treatment, but not the right of a terminally ill

person to seek medication to hasten death. In both

instances, the patient's decision inevitably results in death.

If the state’s interest in life does not support a complete ban

on terminating life-sustaining treatment, it is difficult to

understand why that same interest supports the ban here

simply because death occurs in a different manner.

explained why the pressures exerted by ohysicians in this

context -- both subtle and otherwise -- are any different

when a physician withdraws a patient’s life-sustaining

treatment. In the face of this silence, the untested

assumption that procedural safeguards would be unworkable

is wholly unreasonable and cannot justify the absolute

prohibition here.

The United States, in an effort to distinguish the two

practices, argues that a patient’s choice to hasten death

often reflects inadequate treatment for the patient's pain,

not a true desire to hasten death. The total ban, they argue,

should be upheld because of a “very significant risk that

persons with treatable depression and pain will be allowed

to commit suicide." U.S. Br. at 23 (No. 96-110). Even if

this is an “overriding interest,” id., far less intrusive

measures could allay this concern without the need for the

flat prohibition imposed by the state. Before permitting

physicians to prescribe medication to hasten death, states

have broad discretion to enact measures to ensure that a

patient’s decision is truly voluntary, and not the result of

inadequate pain management. The State has failed to

explain why these less intrusive measures would not

28

adequately serve this interest. Cf Riggins, 504 U.S. at

135-36. Indeed, the protocols used by Compassion in

Dying illustrate some of the procedural safeguards available

to ensure voluntariness. See Compassion in Dying v.

Washington, 850 F. Supp. 1454, 1458 (W.D. Wash.

1994).

In view of the plaintiffs’ strong liberty interest and the

state’s inability to convincingly explain why a prohibition is

necessary here, but not in the context of the termination of

life-sustaining treatment, these statutes must be declared

unconstitutional as applied to plaintiffs.

CONCLUSION

For all the foregoing reasons, amicus respectfully urge

this Court to affirm the decision of the court of appeals.

Dated: December 10, 1996 JANET BENSHOOF

KATHRYN KOLBERT

Counsel of Record

CENTER FOR REPRODUCTIVE

Law & POLICY

120 Wall St., 18th FI.

New York, New York 10005

(212) 514-5534

Counsel for Amicus Curiae

* The same is true of the argument that physicians will misdiagnose

some patients as terminally ill. A prohibition is a patently overbroad

and unreasonable approach to this concern. Regulatory measures, such

as a statutory definition of terminal illness, are more than sufficient to

serve this interest.