# Amicus Curiae Brief — Washington v. Glucksberg

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0007%3A67

## Record

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

## Text

J iUN FILED
“EC 2 4 1996 ,

No. 96-110

In the Supreme Court

OF THE

United States

OCTOBER TERM, 1996

\& /

STATE OF WASHINGTON and CHRISTINE O. GREGOIRE,
ATTORNEY GENERAL OF THE STATE 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 A Writ of Certiorari To The
United States Court of Appeals
For The Ninth Circuit

BRIEF FOR JOHN DOE AS
AMICUS CURIAE SUPPORTING RESPONDENT

LAWRENCE SILVER

MarRK E. FIELD

LAWRENCE SILVER & ASSOCIATES
111 West Ocean Boulevard
Suite 1900
Long Beach, CA 90802-4649
(310) 901-4500

Bowne of Los Angeles, Inc., Law Printers (213) 627-2200

99 PP

i
TABLE OF CONTENTS

CONSENT OF PARTIES

INTEREST OF JOHN DOE
STATEMENT

SUMMARY OF ARGUMENT
ARGUMENT

I BACKGROUND OF THE ISSUE

Il. THE AUTHORITY CITED BY SALERNO
ESTABLISHES ONLY A _ REQUIRE-
MENT OF STANDING, NOT A TEST
FOR ADJUDICATING FACIAL CHAL-
LENGES

THIS COURT’S CONSISTENT PRAC-
TICE CONTRADICTS SALERNO, STAT-
UTES WHICH REACH A SUBSTANTIAL
AMOUNT OF PROTECTED CONDUCT
MAY BE VOIDED IN THEIR ENTIRETY
IF SEVERANCE OF THE OFFENDING
PORTION IS NOT POSSIBLE

A. Challenges By Individual Plaintiffs Are

B. No Limiting Construction Is Available. . .

C. Declaring A Judicially Created “Exceptions
Clause” To The Statute Conflicts With
Recognized Principles Of Severance And
Intrudes On The Power Of The Legislature 16, 17

CASEY'S “UNDUE BURDEN” TEST SETS
THE CORRECT STANDARD OF PROOF 19, 20

CONCLUSION

f

TABLE OF AUTHORITIES
Federal Cases Cited

Ada v. Guam Society of Obstetricians and
Gynecologists, 506 U.S. 1011, 113 S.Ct. 633, 121
L028 566 CIGTE) 2. oc cccctusesceneccuuanee

Alexander v. U.S., 509 U.S. 544, 113 S.Ct. 2766

(i) Perret

Allen v. Louisiana, 103 U.S. 80, 26 L.Ed 318 (1881)

Aptheker v. Secretary of State, 378 U.S. 500, 844
SCe 1659 CIGSE) .. cccccccccesccceuepeuauas

Arkansas Writer's Project, Inc. v. Ragland, 481 U.S.
221, 107 S.Ct. 1722, 95 L.Ed.2d 209 (1987)....

Barnes v. Moore, 970 F.2d 12 (Sth Cir. 1992) ....

Barrows v. Jackson, 346 U.S. 249, 73 S.Ct. 1031

C1DGR). oc ccccosssccecscauenwsbecenaeeam
Bowen v. Kendrick, 487 U.S. 589, 108 S.Ct. 2562,
104 L.BG26 SED CISGE) oo csncesccceseuuunses
oag73) v. Oklahoma, 413 U.S. 601, 93 S.Ct. 2908
Buckley v. Valeo, 424 U.S. 1, 96 S.Ct. 612, 46
L.G238 G50 CEPTS) ovccvvinsccsuuavanuneeat
Butts v. Merchants & Miners ———
Company, 230 U.S. 126, 33 S.Ct. 964 (1913) .
Casey v. Planned Parenthood, 14 F.3d 848 (3rd Cir.
IGD6)......s00ceseecesesuedennens aun 6,
ciy of of Houston, Texas v. Hill, 482 U.S. 451, 107
Ct. 2502, 96 L.Ed.2d 398 (1987) ...........
Compassion in Dying v. Washington, 79 F.3d 790
(Fas Cle. 1GOGD occ vcccvcececéenseonuunnee
Dorchy v. Kansas, 264 U.S. 286, 44 S.Ct. 323
CRGDS). . cecccccccsecssceccsouehauesneaenee
Edmonson v. Leesville Concrete Co., Inc., 500 U.S.
614, 118 BCR. BOTT CEGGE) oc cccccsctscsevess
Edwards v. Aguillard, 482 U.S. 578, 107 S.Ct. 2573,
96 L.BE2S SIO CIDGT) . wcccvsscscsedvesesces

14

14

16, 19
15
6,8
14, 15
10

TABLE OF AUTHORITIES
CASES

Eisenstadt v. Baird, 405 U.S. 438, 92 S.Ct. 1029
SSCS SEEN GUOEbeneeccceccesececoeees

F Women's Health Organization v. Schafer, 18
“F3d $26 (8th Cir, Dt iebbb coscesdé Fie BES Wee SHGO CIDTE) cc cccccccccces

Lanzetta v. New Jersey, 306 U.S. 451, 59 S.Ct. 618
EES SASL EEE

hee dalla nna aime

Oregon Waste Systems, Inc. v. Dept.
nvironmental lity, 511 U.S. 93, 114 S.Ct
1345, 128 L.Ed.2d 13 (1994) ................

Orr v. Orr, 440 U.S. 268, 99 S.Ct. 1102, 59 L.Ed.2d
CECE CCCSGS bee besedeveccecccce

Planned Parenthood, Sioux Falls Clinic v. Miller, 63
F.3d 1452 (8th Cir. 1995) ...................

Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d
ih ehes666.006660000606 0000000.

Schall v. Martin, 467 U.S. 253, 104 S.Ct. 2403
Ne ceguedeccsece

Singleton v. Wulff, 428 U.S. 106, 96 S.Ct. 2868
Nn icuceccees

Page

10

6

16, 18

iv

TABLE OF AUTHORITIES

CASES
Page
Tennessee v. Garner, 471 U.S. 1, 105 S.Ct. 1694, 85
SB 8 GHPEED. cccccccedectedesoscccccces 7,16
U.S. v. Ju Toy, 198 U.S. 253 (1905) ............ 17
U.S. v. Reese, 92 U.S. 214 (1876) .............. 9,10
United States v. Raines, 362 U.S. 17, 80 S.Ct. 519
EUs occbcdecdecscucseedesceccenwouse 9,10, 11,14
United States v. Salerno, 481 U.S. 739, 107 S.Ct.
Ff _, Pree rire 5, 6, 8,9, 10, 11, 12
Wyoming v. Oklahoma, 502 U.S. 437, 112 S.Ct. 789
| SPPPPPrrrrrrrr rr rrrirrrrriii ts 15, 16
Yee v. City of Escondido, 503 U.S. 519, 112 S.Ct.
1522, 118 L.Ed.2d 153 (1992) ............... 13
Zablocki v. Redhail, 434 U.S. 374, 98 S.Ct. 673
TRPUE sé dcccdeccocecsecudeeueeebeeesboet 13, 16, 19
State Cases Cited
In Re Hendrickson, 12 Wash.2d 600, 123 P.2d 322
CURED, Es cocccdndocacedeckhouéececeedse 16
In Re Joseph G., 34 Cal.3d 429, 194 Cal.Rptr. 163
Pr Pe eee 2
Constitutions and Statutes Cited
California Penal Code Section 401 .............. 2
Fifteenth Amendment to the United States Consti-
Se. .. « céncotiesstadtedesaudecsunésenenn 9
Fourteenth Amendment to the United States Consti-
ay err Sa aes 2
Revised Code of Washington
DR To anticipate one possible rejoinder to this language, Salerno, supra,
Pry at 745, 107 S.Ct at 2100, Doe notes that Kolender was not
exclusively a First Amendment case, but also relied on the constitutional
right to freedom of movement. 461 U.S. at 358, 103 S.Ct. at 1859. The
examples cited below confirm that, in any event, this Court has never
limited overbreadth challenges to First Amendment cases.

13

v. Lawson, supra; Lanzetia v. New Jersey, 306 U.S. 451,
59 S.Ct. 618 (1939).

(2) Courts may strike down statutes as “overbroad”
when they have an inhibitory effect on free speech.
Broadrick v. Oklahoma, 413 U.S. 601, 611-13, 93 S.Ct.
2908, 2915-16 (1973). Similarly, courts may strike down
statutes as facially invalid if they violate the Establish-
ment Clause. Bowen v. Kendrick, 487 U.S. 589, 600-602,
108 S.Ct. 2562, 2569-71, 101 L.Ed.2d 520 (1988); Ed-
wards v. Aguillard, 482 U.S. 578, 107 S.Ct. 2573, 96
L.Ed.2d 510 (1987).

(3) Courts may strike down statutes which sweep
unnecessarily broadly and thereby invade the area of
protected freedom. Griswold v. Connecticut, 381 U.S.
479, 485, 85 S.Ct. 1678, 1682 (1965); Roe v. Wade, 410
U.S. 113, 164, 93 S.Ct. 705, 732, 35 L.Ed.2d 147 (1973);

Aptheker v. Secretary of State, 378 U.S. 500, 844 S.Ct.
1659 (1964).

(4) Courts may strike down statutes which have the
purpose or effect of placing a substantial obstacle in the
path of a woman seeking an abortion of a non-viable fetus
— the undue burden test of Casey, supra. And see
Zablocki v. Redhail, 434 U.S. 374, 387, 98 S.Ct. 673, 681

(1978) (similar standard applied to protect marital
relationship).

(5) Courts may strike down ordinances as regulatory
takings if the ordinance does not substantially advance a
legitimate state interest no matter how it is applied. Yee v.
City of Escondido, 503 U.S. 519, 533-4, 112 S.Ct. 1522,
1531-2, 118 L.Ed.2d 153 (1992).

(6) Courts may strike down statutes as underinclusive
on equal protection grounds even if those statutes would
properly apply to some persons. Orr v. Orr, 440 U.S. 268,
271-2, 99 S.Ct. 1102, 1107-8, 59 L.Ed.2d 306 (1979).

14

And see Kraft General Foods v. lowa Dept. of Revenue.
501 U.S. 71, 81-2, 112 S.Ct. 2365, 2371-2 (1992) (apply-
ing sienil an fn Radian ehehatten of Menten ©
merce Clause); Oregon Waste Systems, Inc. v. Dept. of
Environmental Quality, 511 U.S. 93, 114 S.Ct. 1345, 128
L.Ed.2d 13 (1994) (same under the Negative Commerce
Clause); Arkansas Writer's Project, Inc. v. Ragland, 481
U.S. 221, 107 S.Ct. 1722, 95 L.Ed.2d 209 (1987) (same
when discriminatory treatment affects First Amendment
rights).

(7) Courts may strike down statutes where the valid
provision is inextricably intertwined with the invalid
one(s). See Dorchy v. Kansas, 264 U.S. 286, 290, 44
S.Ct. 323, 325 (1924); Raines, supra.

(8) Courts may strike down criminal statutes where
the statute would require such a revision that it no longer
gave intelligible warning of the conduct prohibited.
Raines, supra, 362 U.S. at 22-3, 80 S.Ct. at 523.

(9) Courts may strike down statutes which are uncon-
stitutional in the vast majority of their intended applica-
tions, and it can fairly be said that the statute was not
intended to stand in only the remaining fraction of cases.
See Butts v. Merchants & Miners Transportation Com-
pany, 230 U.S. 126, 33 S.Ct. 964 (1913); Raines, supra.

(10) Courts may strike down an unconstitutional part
of a statute which is wholly independent of the constitu-
tional part. Allen v. Louisiana, 103 U.S. 80, 83-4, 26 L.Ed
318 (1881); Field v. Clark, 143 U.S. 649, 695-6, 12 S.Ct.
495, 505-6, 36 L.Ed. 294 (1892); Buckley v. Valeo, 424
US. 1, 108, 96 S.Ct. 612, 677, 46 L.Ed.2d 659 (1976).

Taken as a whole, these cases demonstrate that this Court
has followed a consistent practice of striking down in their
entirety statutes which reach a substantial amount of pro-
tected conduct, when the statutes are challenged by persons

15

to whom they cannot constitutionally apply, even if those
statutes might constitutionally apply to others. A review of
the alternatives will demonstrate why this Court has acted
so consistently in the examples cited above.

A. Challenges By Individual Plaintiffs Are Impractical.

The case before this Court is not one in which any ruling
could be limited to the particular plaintiffs only. The very
nature of the challenge identifies a large common class of
similarly situated persons whose circumstances will differ
only in detail from those of the plaintiffs here. Individuals
who are terminally ill and suffering have no effective oppor-
tunity to protect their constitutional nghts on a case by case
basis because their medical condition precludes any active
involvement in litigation. It would be exceedingly burden-
some for each terminally ill patient to be forced to sue in
order to exercise the fundamental right at issue here.

B. No Limiting Construction Is Available.

Taking the statute generally, one reason for voiding the
entire statute is the lack of any basis for a limiting construc-
tion. RCW 9A.36.060 is a single section, accomplishing all
of its results by the same general words. Like the ordinance
at issue in City of Houston, Texas v. Hill, 482 U.S. 451, 107
S.Ct. 2502, 96 L.Ed.2d 398 (1987), Washington’s law “is
not susceptible to a limiting construction because . . . its
language is plain and its meaning unambiguous. Its constitu-
tionality cannot ‘turn upon a choice between one of several
alternative meanings.’ [Citations omitted.] Nor can the
ordinance be limited by severing discrete unconstitutional
subsections from the rest.” Jd. at 468, 107 S.Ct. at 2513.‘

“Although the issue of severability is for this Court to decide,
Wyoming v. Oklahoma, 502 U.S. 437, 459, 112 S.Ct. 789, 803 (1992);
Dorchy v. Kansas, supra, 264 U.S. at 291, 44 S.Ct. at 325, it is worth
noting that Washington law treats the entire statute as inoperative when

16

C. Declaring A Judicially Created “Exceptions Clause”
To The Statute Conflicts With Recognized Principles
Of Severance And Intrudes On The Power Of The

Legislature.

In Tennessee v. Garner, 471 U.S. 1, 11, 105 S.Ct. 1694,
1701, 85 L.Ed.2d 1 (1985), this Court applied the concept
of “severance” in a somewhat unusual way by grafting an
exceptions clause onto the statute. In so doing, it exempted
an entire class from the operation of the statute.

While this approach would grant respondents satisfactory
relief, and was the path taken by the Ninth Circuit (79 F.3d
at 798 n. 9), Doe submits that better practice would be to
declare the entire statute void as was done in, e.g., Kolender,
supra; Lanzetta, supra; Aptheker, supra; Casey, supra;
Zablocki, supra; Griswold, supra; Orr, supra; Kraft General
Foods, supra; and Oregon Waste Systems, Inc., supra. This
would accomplish two important results.

First, it would eliminate the possibility of any future
inhibition on the exercise of constitutional rights which
might exist because of the sweeping language of the statute.
This Court expressed precisely this concern in the First
Amendment overbreadth cases and in non-First Amend-
ment cases such as Kolender, Lanzetta, and Griswold, the
concern is clear but implied in Casey and Zablocki.

Of perhaps equal importance is that this Court has
frequently recognized that unitary provisions cannot be
severed. See, ¢.g., Wyoming v. Oklahoma, supra, 502 U.S.
at 460, 112 S.Ct. at 803 (rejecting severability because
“there are no parts or separate provisions in the invalid
[section] of the Act... . Nothing remains to be saved once
that provision is stricken. Accordingly, the Act must stand

the unconstitutional portion is inseparable from the rest. Jn Re Hen-
drickson, 12 Wash.2d 600, 123 P.2d 322, 326 (Wash. 1942).

17

or fall as a whole.”); U.S. v. Ju Toy, 198 U.S. 253, 262
(1905) (“[T]he relevant portion being a single section,
accomplishing all its results by the same general words,
must be valid as to all that it embraces, or altogether void.
An exception of a class constitutionally exempted cannot be
read into those general words merely for the purpose of
saving what remains.”); J/linois Cent. R.R. v. McKendree,
203 U.S. 514, 529-30, 27 S.Ct. 153, 158-9 (1906).

The reason for this is clear: voiding the entire statute gives
proper deference to the responsibility of the legislative
branch. Reese, supra, recognized this principle, and its
teaching on the effect of facial challenges, in contrast to its
views on standing, should still be considered sound:

“We are, therefore, directly called upon to decide
whether a penal statute enacted by Congress, . . . which is
in general language broad enough to cover wrongful acts
without as well as within the constitutional jurisdiction,
can be limited by judicial construction so as to make it
operate only on that which Congress may rightfully pro-
hibit and punish. For this purpose, we must take these
sections of the statute as they are. We are not able to
reject a part which is unconstitutional, and retain the
remainder, because it is not possible to separate that
which is unconstitutional, if there be any such, from that
which is not. The proposed effect is not to be attained by
striking out or disregarding words that are in the section,
but by inserting those that are not now there. Each of the
sections must stand as a whole, or fall altogether. The
language is plain. There is no room for construction,
unless it be as to the effect of the Constitution. The
question, then, to be determined, is, whether we can
introduce words of limitation into a penal statute so as to
make it specific, when, as expressed, it is general only.

It would certainly be dangerous if the legislature could
set a net large enough to catch all possible offenders, and

18

leave it to the courts to step inside and say who could be
rightfully detained, and who should be set at large. This
would, to some extent, substitute the judicial for the
legislative department of the government. The courts
enforce the legislative will when ascertained, if within the
constitutional grant of power. Within its legitimate
sphere, Congress is supreme, and beyond the control of
the courts; but if it steps outside of its constitutional
limitations, and attempts that which is beyond its reach,
the courts are authorized to, and when called upon in due
course of legal proceedings must, annul its encroachments
upon the reserved power of the States and the people.

To limit this statute in the manner now asked for would
be to make a new law, not to enforce an old one. This is
no part of our duty.” 92 U.S. at 221, emphasis added.

See also Kolender, supra, 461 U.S. at 358 n. 7, 103 S.Ct.
at 1858 n. 7 (quoting the emphasized language favorably).

This Court's role in the government makes it preferable to
void ‘he statute and allow the Legislature to redraft it.
Instead of an absolute prohibition, there would have to be a
legislative definition of who was ineligible to exercise the
right, the safeguards which might protect against its abuse,
and approved principles or methods of carrying out the right.
The Legislature deserves the opportunity to make these
decisions in the first instance.

If, on the other hand, the statute remains in effect subject
to piecemeal attack, the law is uncertain and the Legislature
loses control over the process of designing a statute in
accordance with democratic preferences. It also discourages
the legislative branches from exercising their responsibility
to evaluate the constitutionality of a statute before passage.
This Court’s respect for the process of legislation should
dictate a policy of voiding unitary statutes which punish

19

protected conduct, letting the Legislature design a new
statute in light of constitutional mandates.

IV.

CASEY’S “UNDUE BURDEN” TEST SETS
THE CORRECT STANDARD OF PROOF

RCW 9A.36.060 clearly imposes an undue burden on the
exercise of a fundamental privacy right. The same standard
applied in Casey — which is the same standard this Court
has applied in many cases — should apply here. Not only is
the analogy with Casey compelling, but the importance of
privacy as a component part of liberty, and the personal
nature of privacy rights, requires that government actions
not inhibit their exercise. In Zablocki, supra, this Court
recognized that States could impose reasonable regulations
which did not “significantly interfere” with the marital
relationship. 434 U.S. at 386, 98 S.Ct. at 681. In applying
this “undue burden” test without using that language, this
Court stated:

“Under the challenged statute, no Wisconsin resident
in the affected class may marry in Wisconsin or elsewhere
without a court order, and marriages contracted in viola-
tion of the statute are both void and punishable as
criminal offenses. Some of those in the affected class, like
appellee, will never be able to obtain the necessary court
order, because they either lack the financial means to
meet their support obligations or cannot prove that their
children will not become public charges. These persons
are absolutely prevented from getting married. Many
others, able in theory to satisfy the statute’s requirements,
will be sufficiently burdened by having to do so that they
will in effect be coerced into forgoing their right to marry.
And even those who can be persuaded to meet the
statute’s requirements suffer a serious intrusion into their
freedom of choice in an area in which we have held such

20

freedom to be fundamental.” 434 U.S. at 387, 98 S.Ct. at
681, footnote omitted.

V.
CONCLUSION

This case, like John Doe’s own case, does not require a
search of the language or history of the Constitution for the
phrase “physician aid in dying”. Rather, it requires this
Court to undertake its traditional role of breathing life and
meaning into the term “liberty” as used in the Constitution.
The process of construction by which this Court performs its
judicial role can and should implement the intent of the
American people to protect from government interference
the mght to make decisions central to human dignity and
self-worth.

Statutes prohibiting physician aid in dying intrude drasti-
cally into the space of private decision-making protected by
the guarantee of liberty. The effort to impose an absolute
prohibition requires a remedy appropriate to the scope of the
statute, and this Court should not hesitate to declare RCW
9A.36.060 .nvalid on its face.

DATED: December 09, 1996

Respectfully submitted,

By: LAWRENCE SILVER
LAWRENCE SILVER &
ASSOCIATES
111 West Ocean Boulevard
Suite 1900
Long Beach, CA 90802-4649
(310) 901-4500
Telecopier (310) 901-4520

[ATTORNEY GENERAL OF WASHINGTON SEAL]

Christine O. Gregoire
Attorney General of Washington
Transportation & Public Construction Division
PO Box 40113 * Olympia WA 98504-0113
(360) 753-6126

November 25, 1996

Mr. Mark E. Field

Lawrence Silver & Associates

111 West Ocean Boulevard Suite 1900
Long Beach, California 90802-4649

Re: Washington v. Glucksberg,
U.S. Supreme Court Cause No. 96-110

Dear Mr. Field:

This responds to your request for consent to file a brief as
amicus curiae in the above-referenced matter on behalf of
John Doe. Your request for consent is granted.

Very truly yours,

/s/ WILLIAM L. WILLIAMS
William L. Williams
Sr. Assistant Attorney General

WLW:am
cc: Kathryn L. Tucker

Perkins Coie
A Law Partnership Including Professional Corporations
1201 Third Avenue, 40th Floor * Seattle, Washington
98109-3099
Telephone: 206 583-8888 * Facsimile: 206 583-8500

Kathryn L. Tucker
(206) 583-8730
tuckk@PERKINSCOIE.COM

November 20, 1996

Mark E. Field

Lawrence Silver & Associates
111 W. Ocean Blvd., Suite 1900
Long Beach, CA 90802-4649

_ Re: Washington v. Glucksberg; Vacco v. Quill
Dear Mr. Field:

This responds to your request to file a brief as amicus
curiae in the above-referenced matters on behalf of John
Doe. We understand that you intend to support the position
of the Respondents. Your request for consent is granted.
Consistent with our position throughout this litigation, we do
not plan to share argument time with amici.

Please find enclosed a copy of the Court's order setting
forth the briefing schedule for your information.

Also, please note that the joint appendix in Washington v.
Glucksberg will be posted on the Attorney General's Office
home page (htip://www.wa.gov/ago) in a PDF format
when it has been completed. To download it, you will need a
program entitled Acrobat Reader, which can be downloaded
free of charge from the Adobe home page
(hhtp:// www.adobe.com). In the meantime, the Complaint

and significant briefing in support of Respondents in Wash-
ington v. Glucksberg is currently available on the Perkins
Coie home page (hhtp://www.perkinscoie.com). We hope
this medium will allow interested parties expeditious access
to these materials and at the same time avoid unnecessary
printing and mailing costs.

Thank you for your support of Respondents’ position. We
look forward to receiving a copy of your brief.

Very truly yours,

/s/ KATHRYN L. TUCKER
Kathryn L. Tucker

KLT:rak
Enclosure

ce: William L. Williams
Lucia M. Valente
Marc F. Scholl

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0007%3A67. Public record. Not legal advice.