Appendix — Hobbins v. Kelley

TABLE OF CONTENTS

Opinion of the

Michigan Supreme Court ................ la-107a

Opinion of the

Michigan Court of Appeals ............. 108a-140a

Opinion of the

Wayne County Circuit Court ............ 141a-159a

STATE OF MICHIGAN

SUPREME COURT

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellant,

Cross-Appellee,

Vv No. 99591

JACK KEVORKIAN,

Defendant-Appellee,

Cross-Appellant.

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellee,

Vv No. 99674

JACK KEVORKIAN,

Defendant-Appellant.

TERESA HOBBINS, MARIE DeFORD,

KENNETH A. SHAPIRO, KENNETH

WEINBERGER, WILLIAM DRAKE,

ELLIOT D. LUBY, NORMAN BOLTON,

KENNETH TUCKER, KATHRYN UPTON,

and B. ELLIOT GRYSON,

Plaintiffs-Appellees,

Vv No. 99752

ATTORNEY GENERAL OF MICHIGAN,

Defendant-Appellant.

TERESA HOBBINS, MARIE DeFORD,

KENNETH A. SHAPIRO, KENNETH

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WEINBERGER, WILLIAM DRAKE, |

ELLIOT D. LUBY, NORMAN BOLTON,

KENNETH TUCKER, KATHRYN UPTON,

and B. ELLIOT GRYSON, |

Plaintiffs-Appellants, :

Vv No. 99758

ATTORNEY GENERAL OF MICHIGAN,

Defendant-Appellee.

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellant,

Vv No. 99759

JACK KEVORKIAN,

Defendant-Appellee.

MEMORANDUM OPINION

These cases raise three issues with regard to the state’s

imposition of criminal responsibility on persons who assist

others in committing suicide. Two questions are presented

by the appeals in Docket Nos. 99591, 99752, and 99759:

(1) whether the Michigan assisted suicide statute, MCL

752.1027; MSA 28.547 (127), was enacted in violation of

Const 1963, art 4, § 24; (2) whether the criminal provisions

of MCL 752.1027; MSA 28.547 (127) violate the United

States Constitution. In Docket No. 99674, a case predating

the assisted suicide statute, the questions presented is: (3)

whether the circuit court erred in quashing the information

charging the defendant with murder.

A majority of the justices is of the opinion that:

1) The assisted suicide provisions of the statute were

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validly enacted and do not violate the Title-Object Clause

of the Michigan Constitution. (Cavanagh, C.J., and Levin,

Brickley, Boyle, Riley, Griffin, and Mallett, JJ.)

2) The United States Constitution does not prohibit a

state from imposing criminal penalties on one who assists

another in committing suicide. (Cavanagh, C.J., and

Brickley, Boyle, Riley, and Griffin, JJ.)

3) In the murder case, People v Roberts, 211 Mich

187; 178 NW 690 (1920), is overruled to the extent that it

can be read to support the view that the common-law

definition of murder encompasses the act of intentionally

providing the means by which a person commits suicide.

Only where there is probable cause to believe that death

was the direct and natural result of a defendant’s act can

the defendant be properly bound over on a charge of

murder. Where a defendant merely is involved in the

events leading up to the death, such as providing the

means, the proper charge is assisting in a suicide, which

may be prosecuted as a common-law felony under the

saving clause, MCL 750.505; MSA 28.773, in the absence

of a statute that specifically prohibits assisting in a suicide.

(Cavanagh, C.J., and Levin, Brickley, Griffin, and Mallett,

JJ.)

4) The motion to quash must be reconsidered by the

circuit court to determine whether the evidence produced

at the preliminary examination was sufficient to bind the

defendant over for trial (Cavanagh, C.J., and Brickley,

Griffin, and Mallett, JJ.)

We reverse the judgment of the Court of Appeals in

People v Kevorkian, Docket No. 99591, and People v

Kevorkian, Docket No. 99759, and remand the cases to the

respective circuit courts for further proceedings. In

Hobbins v Attorney General, Docket Nos. 99752 and

99758, we reverse the judgment of the Court of Appeals

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with regard to the claimed violation of Const 1963, art 4,

§ 24, and affirm in all other respects. Finally, in People v

Kevorkian, Docket No. 99674, we vacate the judgment of

the Court of Appeals, and remand the case to the circuit

court for further proceedings.

This memorandum opinion is signed by the seven

justices. There are separate concurring and dissenting

opinions. However, at least four justices concur in every

holding, statement, and disposition of this memorandum

opinion.

CAVANAGH, C.J., and BRICKLEY and GRIFFIN, JJ.

These cases raise three issues with regard to the state’s

imposition of criminal responsibility on persons who assist

others in committing suicide. Two questions are presented

by the appeals in Docket Nos. 99591, 99752, and 99759:

(1) Whether the Michigan assisted statute, MCL 752.1027;

MSA 28.547(127), was enacted in violation of Const 1963,

art 4, § 24. (2) Whether the criminal provisions of MCL

752.1027; MSA 28.547(127) violate the United States

Constitution. In Docket No. 99674, a case predating the

assisted suicide statute, the question presented is: (3)

Whether the circuit court erred in quashing the

information charging the defendant with murder.

We conclude: (1) the assisted suicide provisions of the

statute were validly enacted and do not violate the Title-

Object Clause of the Michigan Constitution; (2) the United

States Constitution does not prohibit a state from imposing

criminal penalties on one who assists another in

committing suicide; (3) in the murder case, the motion to

quash must be reconsidered by the circuit court to

determine if the evidence produced at the preliminary

examination was sufficient to bind the defendant over for

trial.

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Pat Seer tee Se ee ee ,

I

Hobbins v Attorney General

(Docket Nos. 99752, 99758)

The "Declaratory Judgment Action"

Shortly after the Legislature enacted the assisted

suicide statute, a group of plaintiffs, two of whom are

alleged to be suffering from terminal cancer, a friend of

one of them, and seven medical care professionals, brought

an action in Wayne Circuit Court, seeking a declaration

that the statute was unconstitutional. The parties moved

for summary judgment and the plaintiffs sought a

preliminary injunction against enforcement of the statute.

The circuit court found the statute to be unconstitutional.’

First, it concluded that there were two violations of Const

1963, art 4, § 24: the statute did not have a single object,

and there was a change in the purpose of the bill during its

passage through the Legislature. Second, the court found

a due process right to commit suicide. However, it

declined to issue a preliminary injunction, concluding that

hearings would be needed to determine whether the statute

placed an undue burden on that right. The Attorney

General filed a claim of appeal in the Court of Appeals.

People v Kevorkian

(Docket No. 99591)

The "Wayne County Assisted Suicide Case"

Also after the enactment of the assisted suicide statute,

defendant Kevorkian is alleged to have assisted in the

death of Donald O’Keefe. The defendant was charged

under the statute and bound over after preliminary

‘The circuit court found that the two patients, a psychiatrist, and

a pharmacist had standing to challenge the statute, but that the other

plaintiffs did not. The Court of Appeals did not discuss the standing

question, and it has not been raised here.

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examination. He moved to dismiss, and the circuit court

granted the motion. The court rejected the art 4, § 24

challenges to the statute, but found a due process interest

in the decision to end one’s life, and that the law

impermissibly burdened that interest.

The court held an evidentiary hearing to determine if

the facts satisfied the four-part test that it had set forth in

its opinion.” Following the hearing, the court issued an

order concluding that the facts of the case met the

standard and dismissed the charge. The prosecutor

appealed to the Court of Appeals.

People v Kevorkian

(Docket No. 99759)

The "Oakland County Assisted Suicide Case"

Defendant Kevorkian was charged in two separate files

with assisting in the suicides of Merion Frederick and Ali

Khalili. The defendant was bound over after a preliminary

examination in one case and waived examination in the

other. The circuit court granted the defendant’s motion to

dismiss. The court discussed the potential privacy and

liberty interests in ending one’s life, concluding that a

person does have the right to commit suicide. However, it

further concluded that defendant Kevorkian lacked

*The standard that the trial court had announced was the

following:

[T]his Court finds that when a person’s quality of life is

significantly impaired by a medical condition and the medical

condition is extremely unlikely to improve, and that person’s

decision to commit suicide is a reasonable response to the

condition causing the quality of life to be significantly

impaired, and the decision to end one’s life is freely made

without undue influence, such a person has a constitutionally

protected right to commit suicide.

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standing to challenge the statute.’ The court also found

that the statute was unconstitutional because it had more

than one object and because its purpose was changed

during its passage through the Legislature. The prosecuting

attorney appealed.

People v Kevorkian

(Docket No. 99674)

The "Oakland County Murder Case"

Before the statute was enacted, defendant Kevorkian

allegedly assisted in the deaths of Sherry Miller and

Marjorie Wantz on October 23, 1991. He was indicted by

a citizens’ grand jury on two counts of murder.* After a

preliminary examination, the defendant was bound over for

trial. In the circuit court, the defendant moved to

dismiss, and the circuit judge granted the motion,

concluding that assisting in suicide does not fall within the

crime of murder. The prosecutor appealed.

II

The Court of Appeals issued its decisions in two sets

of opinions on May 10, 1994. One decision dealt with the

cases involving the assisted suicide statute.° The majority

*The Court of Appeals did not discuss the question of standing,

and it has not been raised in this Court.

*As permitted by statute, the indictment did not specify the degree

of murder. See MCL 750.318; MSA 28.550, MCL 767.71; MSA

28.1011.

*The defendant also had been indicted on one count of delivering

a controlled substance for other than legitimate and professionally

recognized purposes. MCL333.7401(1); MSA 14.15(7401)(1). However,

the district judge dismissed the drug count.

°Hobbins v Attorney General, 205 Mich App 194; 518 NW2d 487

(1994).

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concluded that the assisted suicide statute was

unconstitutional because the act had more than one object,

in violation of art 4, § 24. Though recognizing that it i

arguably was not necessary to deal with the remaining

issue, the majority went on to consider whether the statute

violated the United States Constitution. The majority

concluded that there was no violation, and that the state

was free to make it a criminal offense to assist another in

committing suicide.’

few re

The appeal regarding the murder case was decided :

separately.© The majority’ concluded that the circuit

court erred in quashing the information.

Il

The prosecuting authorities in each of the assisted

suicide cases appealed the conclusion that the assisted

suicide statute was enacted in violation of Const 1963, art

4, § 24. Defendant Kevorkian filed a cross appeal with

regard to the United States constitutional issue in the

Wayne County assisted suicide case, and the plaintiffs in

the declaratory judgment action filed their own application

for leave to appeal on that issue. In the murder case,

defendant Kevorkian filed an application for leave to

’The majority opinion was written by Judge E. Thomas Fitzgerald.

The other judges on the panel, Clifford W. Taylor, and Washtenaw

Circuit Judge Donald E. Shelton, sitting by assignment, wrote separate

opinions. Judge Shelton concurred with regard to the art 4, § 24 issue,

but dissented with regard to the United States constitutional violation.

Judge Taylor concurred that the statute did not violate the United

States Constitution, but would have found no art 4, § 24 violation.

SPeople v Kevorkian No 1, 205 Mich App 180; 517 NW2d 293

(1994).

*The opinion was written by Judge Fitzgerald, and concurred in by

Judge Taylor. Judge Shelton dissented.

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appeal. On June 6, 1994, we granted the applications, 445

Mich 917, and the cases were argued on October 4, 1994.

IV

A

During 1991, several bills were introduced in the

Legislature regarding the subject of assisting in suicide.

The bill that ultimately became 1992 PA 270 was

introduced on March 7, 1991, as HB 4501. As originally

introduced, it would have created the Michigan

Commission on Death and Dying that was to study

"voluntary self-termination of life" and related subjects and

report its recommendations to the Legislature.’° It was

referred to the Judiciary Committee, and there were public

hearings in December 1991. The committee reported a

substitute bill to the House on November 12, 1992.

On November 24, the House amended the substitute

bill by adding a section that would make it a crime to assist

another in committing suicide,’ and the bill passed the

House on that date." The Senate passed the bill on

The title of the bill read:

A bill to create the Michigan commission on death and

dying; to prescribe its membership, powers, and duties; and

to provide for the development of legislative

recommendations concerning certain issues related to death

and dying.

“Two other bills had been pending at the time of the introduction

of HB 4501 that included criminal penalties for assisting suicide. HB

4038; SB 32. The language added to HB 4501 was very similar to that

of SB 32.

The title was amended to reflect the presence of the new

provisions:

A bill to create the Michigan commission on death and

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December 3, 1992, and it was signed by the Governor on

December 15. 1992 PA 270. It was to be effective March

31, 1993, ninety days after the legislative session, as

provided by Const 1963, art 4, § 27.

On January 26, 1993, SB 211 was introduced to amend

§ 7 of 1992 PA 270, which contained the criminal

penalties.” It passed the Senate on February 11. On

February 25, the House approved a substitute, which,

among other things, provided that the act, including both

the commission and criminal provisions, would be effective

on February 25, 1993. The Senate concurred in the

substitute, and the Governor signed the bill that same day.

1993 PA 3."

Para eee

dying; to prescribe its membership, powers, and duties; to

provide for the development of legislative recommendations

concerning certain issues related to death and dying; to

prohibit certain acts pertaining to the assistance of suicide; to

prescribe penalties: and to repeal certain parts of this act on a

specific date. [Emphasis added. ]}

MCL 752.1027; MSA 28.547(127). It also provided that the

criminal provisions would expire six months after the commission

reported to the Legislature.

Under 1993 PA 3, the provision that makes it illegal to assist in

a suicide reads as follows:

(1) A person who has knowledge that another person

intends to commit or attempt to commit suicide and who

intentionally does either of the following is guilty of criminal

assistance to suicide, a felony punishable by imprisonment

for not more than 4 years or by a fine of not more than

$2,000.00. or both:

(a) Provides the physical means by which the other

person attempts or commits suicide.

(b) Participates in a physical act by which the other

person attempts or commits suicide.

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Each house had voted to give the act immediate effect,

and thus the act was effective on February 25, 1993. The

enrolled bill’* sets forth the full text of each section of the

act as required by Const 1963, art 4, § 25. Pursuant to the

statute, the Commission on Death and Dying was

constituted and prepared its final report to the Legislature.

B

Const 1963, art 4, § 24 provides as follows:

No law shall embrace more than one object,

which shall be expressed in its title. No bill shall

be altered or amended on its passage through

either house so as to change its original purpose

as determined by its total content and not alone by

(2) Subsection (1) shall not apply to withholding or

withdrawing medical treatment.

(3) Subsection (1) does not apply to prescribing,

dispensing, or administering medicationsor procedures if the

intent is to relieve pain or discomfort and not to cause

death, even if the medication or procedure may hasten or

increase the risk of death.

(4) This section shall take effect February 25, 1993.

(5) This section is repealed effective 6 months after the

date the commission makes its recommendations to the

legislature pursuant to section 4. [MCL 752.1027; MSA

28.547(127).]

As enacted, the title read as follows:

An act to prohibit certain acts pertaining to the

assistance of suicide; to provide for the development of

legislative recommendations concerning certain issues related

to death and dying, including assistance of suicide: to create

the Michigan commission on death and dying; to prescribe

its membership, powers, and duties; to prescribe penalties;

and to repeal certain parts of this act on a specific date.

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its title.*°

Three kinds of challenges may be brought against

statutes on the basis of Const 1963, art 4, § 24: (1) a

"title-body" challenge, (2) a multiple-object challenge, and

(3) a change of purpose challenge. No "title-body"

challenge, claiming that the title of the act does not

adequately express the content of the law, is before us.

However, the other two bases for contesting the statute are

presented.

The circuit court in both the declaratory judgment

action and the Oakland County assisted suicide case held

that the statute had more than one object and that the

purpose of HB 4501 was changed during its passage

through the Legislature.

The Court of Appeals majority reached only the

multiple-object challenge and affirmed the circuit court

decisions.”

We would hold that both art 4, § 24 challenges of the

statute are without merit, and reverse.

1

Multiple-Object Challenge

The purpose of the constitutional provision now found

in art 4, § 24 was stated by Justice Cooley fifteen years

after such language was included in the Constitution of

1850:

The history and purpose of this constitutional

‘Similar language has been in each Michigan Constitution since

1850. Const 1850, art 4, §§ 20, 25; Const 1908, art 5, §§ 21, 22.

'7As noted above, the circuit court in the Wayne County assisted

suicide case rejected the art 4, § 24 challenge.

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P iia rts BS cr tid!

provision are too well understood to require any

elucidation at our hands. The practice of bringing

together into one bill subjects diverse in their

nature, and having no necessary connection, with

a view to combine in their favor the advocates of

all, and thus secure the passage of several

measures, no one of which could succeed upon its

own merits, was one both corruptive of the

legislator and dangerous to the state. It was

scarcely more so, however, than another practice,

also intended to be remedied by this provision, by

which, through dexterous management, clauses

were inserted in bills of which the titles gave no

intimation, and their passage secured through

legislative bodies whose members were not

generally aware of their intention and effect.

There was no design by this clause to embarrass

legislation by making laws unnecessarily restrictive

in their scope and operation, and thus multiplying

their number; but the framers of the constitution

meant to put an end to legislation of the vicious

character referred to, which was little less than a

fraud upon the public, and to require that in every

case the proposed measure should stand upon its

own merits, and that the legislature should be

fairly notified of its design when required to pass

upon it [People ex rel Drake v Mahaney, 13 Mich

481, 494-495 (1865).]

The provision is not meant to be applied restrictively.

Kuhn v Treasury Dep’t, 384 Mich 378, 387-388; 183 NW2d

796 (1971). See also Local No 644 v Oakwood Hosp Corp,

367 Mich 79, 91; 116 NW2d 314 (1962):

Numerous cases have held that the "object" of

a Statute is the general purpose or aim of the

enactment. The legislature may empower a body

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created by it to do everything requisite, necessary,

or expedient to carry out the principal objective to

be attained. Legislation, if it has a primary object,

is not invalid because it embraces more than 1

means of attaining its primary object. In_re

Brewster Street Housing Site, 291 Mich 313 [289

NW 493 (1939).

With all but the simplest of statutes, it would be

possible to select one section, describe the "object" of that

section, and be able to reason, as the Court of Appeals

majority did in this case, that the remaining sections have

different objects. The flaw in this approach is in defining

the object of 1992 PA 270 as being limited to the content

of the bill as originally introduced. The Court of Appeals

said:

The original purpose of HB 4501, as expressed

in both the title and body of the bill, was to create

a new public act to study certain issues related to

death and dying. This bill had no regulatory

authority. When HB 4501 was amended to add the

substance of SB 32, the additional provisions had

another and different objective - to amend the

Penal Code to create the crime of criminal

assistance to suicide. [205 Mich App 194, 201-202:

518 NW2d 487 (1994).]

In so reasoning, the Court of Appeals majority

confused the analysis to be used in multiple-object cases

with that appropriate in assessing a challenge based on a

change of purpose theory. The object of the legislation

must be determined by examining the law as enacted, not

as Originally introduced.

We would find the instant statute clearly to embrace

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Viasd eee WNT

only one object." While the cases cited by the parties

involving multiple-object challenges concern quite different

statutes, an examination of those cases that have found

multiple-object violations’ and those that have not”

'8The Court of Appeals majority said that although the statute

encompasses a single "subject," it has two primary objectives. As noted

earlier, the Court of Appeals reached that conclusion by artificially

selecting as the object of the bill its content as originally introduced.

Further, the terms "subject" and "object" are largely equivalent for the

purpose of analyzing these issues, and are often used interchangeably

by the courts, e.g., Livonia v Dep’t of Social Services, 423 Mich 466,

499; 378 NW2d 402 (1985); Advisory Opinion re Constitutionality of

1972 PA 294, 389 Mich 441, 465-466; 208 NW2d 469 (1973). Even the

Court of Appeals majority did so in the instant case:

The purpose of the one-object provision is to avoid

bringing into one bill diverse subjects that have no necessary

connection. Mooahesh [v Treasury Dep’t, 195 Mich App 551,

564; 492 NW2d 246 (1992)]. [205 Mich App 199.]

For example, in Advisory Opinion on Constitutionality of 1975

PA_227, 396 Mich 123; 240 NW2d 193 (1976), the statute (1)

established a political ethics commission, (2) set forth requirements for

candidate committees, (3) imposed filing statements with respect to

contributions and expenditures, (4) placed limits on campaign

expenditures, (5) established a state campaign fund, (6) regulated

lobbying activities, and (7) repealed five existing laws.

In People v Carey, 382 Mich 285; 170 NW2d 145 (1969), this

Court held that it was improper to include in the statute dealing with

the supervision, regulation, and control of motor vehicles for hire, a

provision purporting to give inspectors appointed by the Public Service

Commission the same powers as police officers.

In Hildebrand v Revco Discount Drug Centers, 137 Mich App 1;

357 NW2d 778 (1984), the Court of Appeals found it unconstitutional

to include in the Michigan Civil Rights Act a provision restricting the

use of polygraph results in employment decisions.

lSa

demonstrates that the instant case falls squarely within the

category of permissible joining of statutory provisions.

The Court of Appeals majority sought to distinguish

People v Trupiano, 97 Mich App 416; 296 NW2d 49

(1980), on which the prosecutors relied, on the ground that

the statute in question in that case (the Public Health

Code)” involved a legislative enactment constituting a

01n Builders Square v Agriculture Dep’t, 176 Mich App 494, 499;

440 NW2d 639 (1989), it was argued that the statute had two objects -

- regulation of pricing and regulation of deceptive advertising.

However, the Court of Appeals rejected that contention and upheld

the constitutionality of the act:

We do not believe the item pricing and deceptive

advertising act violates the title-object clause of the Michigan

Constitution. The purpose of title-object clause, namely

notice, was satisfied. Although dissimilar, the act’s two

objectives, regulation of pricing and advertising, are not so

diverse in nature as to be at odds with the constitution.

Further, the objects are consistent with the overall purpose,

consumer protection. Since the title of the act need not be

an index of its provisions, it is inconsequential that the act

fails to mention consumer protection. A fair reading of the

title demonstrates its purpose.

Jacobson v Carlson, 302 Mich 448; 4 NW2d 721 (1942), involved

an amendment of the motor vehicle statute that dealt solely with the

subject of pedestrians and sidewalks. This Court found that statute not

to be in violation of the Title-Object Clause.

In Kull v State Apple Comm, 296 Mich 262; 296 NW 250 (1941),

this Court upheld an act that contained provisions ranging from

promoting the consumption and sale of apples to taxing apple

production, creating an apple commission, and providing penalties.

While the act addressed four seemingly diverse matters, it was proper

to join them because all related to the regulation of the apple industry.

*'The Public Health Code includes criminal penalties for

controlled substance violations as well as many other provisions. MCL

333.1101 et seq.; MSA 14.15(1101) et seg.

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"code." However, there is no "code exception" in art 4,

§ 24. Rather, the caves upholding codes against

multiple-object challenges are at most an extension of the

liberality with which such challenges are reviewed.

The Court of Appeals majority suggested that the

Legislature could have included the provisions regarding

the commission and the criminal penalties in the same bill

if it had used a more general title:

Had the Legislature intended to codify or

regulate the general "subject" of assisted suicide, it

could have notified the public of this intention by

declaring a single broad purpose and by joining

the object contained in HB 4501 with the object

contained in SB 32 together in one bill. This the

Legislature did not do. This failure resulted in the

body of the act containing two distinct objects. The

fact that the title was amended to reflect the

addition of § 7 does not cure the constitutional

infirmity. The one-object provision may not be

circumvented by creating a title that includes

different legislative objects. Hildebrand v Revco

Discount Drug Centers, 137 Mich App 1, 11; 357

The Trupiano Court said:

The Supreme Court has recognized a wide degree of

discretion in reviewing legislative enactments which

constitute a "code." In Advisory Opinion re Constitutionality

of 1972 PA 294, supra, the Court noted at 463:

"Emphasis is given to the fact that the subject matter

constitutes a code and that inherently the scope of a code

must be broad enough to encompass the various facets

necessary to the drafting of a unified law. If we fail to permit

such a design codes may not be enacted in Michigan so long

as the ‘one-object’ limitation is present in the constitution.”

[Trupiano at 420.}

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NW2d 778 (1984). [205 Mich App 202-203.]

This emphasis on the title is misplaced. It cannot be

said that a statute has two objects if its title specifically

describes its content, but only one if the title is general.

Insofar as one of the purposes of the Title-Object Clause

is to provide notice of the content of a bill to the

Legislature and the public, a more specific title better

achieves that purpose, particularly regarding a fairly short

bill like the one in this case. Elsewhere in its opinion, the

Court of Appeals majority itself recognized that one looks

to the body of the act, not the title, to determine whether

it has a single object:

While the object must be expressed in the

title, the body of the law must be examined to

determine whether it embraces more than one

object. Kent Co ex rel Bd of Supervisors of Kent

County v Reed, 243 Mich 120, 122; 219 NW 656

(1928). [205 Mich App 199.]

The Hobbins plaintiffs and defendant Kevorkian also

argue that there was a multiple-object violation because the

provisions could have been enacted in separate bills. They

rely on Advisory Opinion on Constitutionality of 1975 PA

227 (Question One), 396 Mich 123, 129; 240 NW2d 193

(1976):

"The provisions in these two sections might

have been enacted in separate laws without either

of them in any way referring to or affecting the

other." [Quoting Kent Co ex rel Bd of Supervisors

v Reed, supra at 122.]

This principle is unsound. There is virtually no statute

that could not be subdivided and enacted as several bills.

It is precisely that kind of "multiplying" of legislation that

we seek to avoid with the liberal construction given to art

18a

4,§ 24%

Accordingly, we would hold that the assisted suicide

statute embraces only one object and thus was validly

enacted.

2

Change in Purpose Challenge”

The Hobbins plaintiffs also challenge the statute on the

ground that its purpose was changed during its passage

through the Legislature. They point to Anderson v

Oakland Co Clerk, 419 Mich 313, 329; 353 NW2d 448

(1984), as establishing that the objectives of that provision

are to "preclude last-minute, hasty legislation and to

provide notice to the public of legislation under

consideration ... ." The provision is integrally related to

the "five-day rule" of art 4, § 26, which states that no bill

can be passed until it has been printed or reproduced and

in the possession of each house for at least five days. They

maintain that those principles have been violated in this

Statute. After the bill was introduced, the Legislature

amended HB 4501 to add a provision criminalizing assisted

suicide. The Hobbins plaintiffs say that this amendment

dramatically changed the purpose of the original bill, which

was to create a study commission. Thus, it is argued, the

“In fact, the instant statute might well be upheld even if that

principle were valid. The criminal penalties section provides that it “is

repealed effective 6 months after the date the commission makes its

recommendations to the legislature pursuant to section 4." Thus, it

could not have been separately enacted without reference to the

commission provisions.

4 As noted earlier, although the Court of Appeals majority did not

address this issue, the circuit court in both the Oakland County

assisted suicide case and the declaratory judgment action found a

change of purpose challenge to be meritorious.

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Legislature was able to enact a law making assisted suicide

a criminal offense without giving the people an opportunity

to be heard on this highly charged and emotional issue.

Looking at the legislative calendar for the day on which the

amendment was made, the Hobbins plaintiffs find

reference only to an act to create the Commission on

Death and Dying.

In response to the prosecuting authorities’ argument

that the later enactment of 1993 PA 3 cured the defect, the

plaintiffs maintain that the argument is "structurally

unsound" and misstates the effect of the reenactment of an

amended law. They contend that the constitutional

violation was complete when 1992 PA 270 was enacted,

and that 1993 PA 3 merely amended the former act in

minor respects and gave it immediate effect.

The argument by the plaintiffs fails to take into

account that the criminal penalties for assistance to suicide

were an interim measure tied to the Legislature’s

continuing consideration of issues related to death and

dying, including those to be covered in the report of the

commission. Thus, the penalties can be viewed as simply

providing a stable environment while the Commission on

Death and Dying, the Legislature, and the citizenry studied

these questions further.

Moreover, cases interpreting the change of purpose

clause indicate that the test for determining if an

amendment or substitute changes a purpose of the bill is

whether the subject matter of the amendment or substitute

is germane to the original purpose.” The test of

>See, e.g., United States Gypsum Co v Dep’t of Revenue, 363

Mich 548; 110 NW2d 698 (1961); Commuter Tax Ass’n v Detroit, 109

Mich App 667; 311 NW2d 449 (1981); People v Clopton, 117 Mich

App 673; 324 NW2d 128 (1982).

20a

germaneness is much like the standard for determining

whether a bill is limited to a single object. As we held

above, the creation of the commission and the provision of

criminal penalties were appropriately placed in the same

bill.

We also agree with the prosecuting authorities that any

problems with the enactment of 1992 PA 270 were

eliminated with the enactment of 1993 PA 3. The plaintiffs

do not claim that the later act is independently subject to

attack on a change of purpose ground. It is a basic

principle of statutory construction that an amending statute

replaces the former provisions. As we explained in Lahti v

Fosterling, 357 Mich 578, 587-588; 99 NW2d 490 (1959):

This Court in People v Lowell, 250 Mich 349,

354-356 [230 NW 202] (1930), said:

"An amendatory act has a repealing force, by

the mechanics of legislation, different from that of

an independent statute. Repugnancy is not the

essential element of implied repeal of specifically

amended sections. The rule is:

"Where a section of a statute is amended, the

original ceases to exist, and the section as

amended supersedes it and becomes a part of the

Statute for all intents and purposes as if the

amendments had always been there.’ 25 RCL

[Statutes § 159], p 907. .

"Nevertheless, the old section is deemed

stricken from the law, and the provisions carried

over have their force from the new act, not from

the former. 1 Lewis, Sutherland Statutory

Construction (2d ed), § 237.

"It is plain from the authorities in this State

and elsewhere that the effect of an act amending

2la

a specific section of a former act, in the absence of

a saving clause, is to strike the former section

from the law, obliterate it entirely and substitute

the new section in its place. This effect is not an

arbitrary rule adopted by the courts. It is the

natural and logical effect of an amendment ’to

read as follows.’ It accomplishes precisely what the

words import. Any other construction would do

violence to the plain language of the legislature."

1993 PA 3 amended each section of 1992 PA 270, and

the entire text was reprinted and reenacted. The enacting

clause stated that those sections were "amended to read as

follows... ."

Further, it is clear that an amending statute can

remedy a constitutional defect in the original act. As noted

in 1A Singer, Sutherland Statutory Construction (5th ed),

§ 22.04, p 182, "[s}ome courts have indicated that an

unconstitutional act is legally nonexistent and cannot be

given effect by an attempt to amend it." However, as the

treatise goes on to explain:

A majority of courts seem to have rejected the

theory that an unconstitutional act has no

existence, at least for the purpose of amendment.

The unconstitutional act physically exists in the

official statutes of the state and is available for

reference, and as it is only unenforceable, the

purported amendment is given effect... .

This escape from the legal fiction that an

unconstitutional act does not exist is sound. That

fiction serves only as a convenient method of

stating that an unconstitutional act gives no rights

or imposes no duties. . . . Amendment offers a

convenient method of curing a defect in an

unconstitutional act. [/d. at 183.]

22a

This principle has been followed in Michigan cases,”

and is fully applicable here. The statute under which

defendant Kevorkian has been charged is MCL 752.1027;

MSA 28.547(127), as amended by 1993 PA 3, which was

not enacted in violation of the change of purpose clause.

Accordingly, we would hold that the assisted suicide

provisions of MCL 752.1027; MSA 28.547(127) are not

void by reason of violation of Const 1963, art 4, § 24.

V

A

Having found that Michigan’s assisted suicide statute

does not violate Const 1963, art 4, § 24, we now address

whether the statute runs afoul of the United States

Constitution. In its opinion of May 10, 1994, the Court of

Appeals rejected this argument. So do we.

The Due Process Clause of US Const, Am XIV

commands the states not to "deprive any person of life,

liberty, or property, without due process of law... ."

Thus, the threshold question in this case is whether the

clause encompasses a fundamental right to commit suicide

and, if so, whether it includes a right to assistance.

B

Those who assert that there is such a right rely heavily

on decisions of the United States Supreme Court in

abortion and so-called “right to die" cases. Focusing

especially on Planned Parenthood of Southeastern

*°See, e.g., People v De Blaay, 137 Mich 402, 404-405: 100 NW

598 (1904), Briggs v Campbell, Wyant & Cannon Foundry Co, 2 Mich

App 204, 218-219; 139 NW2d 336 (1966), and Kriger v South Oakland

Co Mutual Aid Pact, 49 Mich App 7, 13-15; 211 NW2d 228 (1973)

(amendment cured title-object defect), rev'd on other grounds 399

Mich 835 (1977).

23a

Pennsylvania v Casey, 505 US __; 112 S Ct 2791; 120 L

Ed 2d 674 (1992), and Cruzan v Director, Missouri Dep’t

of Health, 497 US 261; 110 S Ct 2841; 111 L Ed 2d 224

(1990), these advocates argue that the right to end one’s

own life is a fundamental liberty interest, grounded in the

notion of personal autonomy and springing from

common-law concepts of bodily integrity and informed

consent. They further contend that an integral part of this

protected interest is the right to assistance, hence the term

"assisted suicide."”’

We do not discern in Cruzan and its historic roots an

indication that the federal constitution protects a right

more expansive than the right to refuse to begin or to

continue life-sustaining medical treatment. Neither do we

find in Casey or in the precedent from which it evolved an

intent to expand the liberty interests identified by the

Court in such a manner.

c

Cruzan was the first case to present to the United

States Supreme Court the issue whether the federal

*”The Hobbins plaintiffs object to the term "assisted suicide.” They

concede that there is no right under the Due Process Clause to commit

"ordinary" suicide, with or without assistance. They assert only the right

of mentally competent, terminally ill persons "to make the choice to

hasten inevitable death,” particularly by the use of lethal quantities of

physician-prescribed medications. However, the common definition of

“suicide” is the intentional killing of oneself by any means, and the

temporal proximity of death is irrelevant to the threshold inquiry into

whether the constitution encompasses such a right. We thus do not

believe that it would be appropriate to use euphemistic language, even

in the context of a challenge that purports to be limited to the plight

of the terminally ill. We agree with the Attorney General that there is

a risk that such phraseology will disguise the reality of the very sober

questions that we must decide.

24a

constitution grants a so-called "right to die."“ 497 US

277. The Court was asked in Cruzan to decide the validity

of a state statute that prohibited a Missouri couple from

halting the artificial nutrition and hydration of their

brain-damaged daughter, absent clear and convincing

evidence of her wishes.

In upholding the Missouri statute, the majority

observed that the constitutional right of a competent

person to refuse unwanted medical treatment could be

inferred from prior Supreme Court decisions.” 497 US

*®The case generally regarded as the landmark decision concerning

the refusal of life-sustaining medical treatment is In re Quinlan, 70 NJ

10; 355 A2d 647 (1976), cert den sub nom Garger v New Jersey, 429

US 922 (1976). In Quinlan, the New Jersey Supreme Court reasoned

that a comatose young woman had a privacy right grounded in the

federal constitution to be free from bodily invasion by further

treatment (a respirator), that the right was not diminished by her

mental incompetency, and that her father could refuse such treatment

on her behalf.

In tracing the history of cases involving the right to refuse

medical treatment, the Court discussed the doctrine of informed

consent that embraces the common-law notion of "bodily integrity," i.e.,

“the right of every individual to the possession and control of his own

person, free from all restraint or interference of others, unless by clear

and unquestionable authority of law." 497 US 269, quoting Union

Pacific R Co v Botsford, 141 US 250, 251; 11 S Ct 1000; 35 L Ed 734

(1891). The Cruzan Court said that the logical corollary of the doctrine

of informed consent is that a patient generally has a right not to

consent, i.e., a right to refuse treatment.

By footnote, the Court observed that although many state courts

had found a right to refuse medical treatment in a generalized

constitutional right of privacy, the Supreme Court had not. Rather, the

Court had determined that the issue more properly is analyzed in

terms of a Fourteenth Amendment liberty interest. See Cruzan, 497

US 279, n 7, citing Bowers v Hardwick, 478 US 186, 194-195: 106 S Ct

2841; 92 L Ed 2d 140 (1986).

25a

278. For purposes of analysis, the Court "assumed" that

there also was a constitutional right to halt lifesaving

hydration and nutrition. However, the Court emphasized

that such a liberty interest would have to be balanced

against relevant state interests. The interests advanced in

Cruzan -- the preservation of life*® and the safeguarding

of an incompetent person’s wishes against potential abuses

-- were found sufficient to sustain the evidentiary

requirement.”

Casey was decided two years after Cruzan. There, the

Court was asked to decide the validity of a Pennsylvania

abortion statute that included an "informed consent"

requirement, a waiting period, and a "spousal notification"

provision. In upholding all but the notification provision,”

The Court said that the state could "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... ." Jd. at 282.

*!The Cruzan Court said that the "clear and convincing evidence”

standard was appropriate not only because of the importance of the

interests at issue, but also because the standard serves as a "societal

judgment” about how the risk of error should be distributed between

the litigants. "The more stringent the burden of proof a party must

bear, the more that party bears the risk of an erroneous decision.” In

the case of an effort to terminate life-sustaining medical treatment for

an incompetent person, an erroneous decision to continue treatment

simply maintains the status quo. An erroneous decision to stop such

treatment, however, is not susceptible to correction. 497 US 283.

**With respect to the notification provision, the Court observed:

It is an inescapable biological fact that state regulation

with respect to the child a woman is carrying will have a far

greater impact on the mother’s liberty than on the father’s.

The effect of state regulation on a woman’s protected liberty

is doubly deserving of scrutiny in such a case, as the State

has touched not only upon the private sphere of the family

26a

the Court reaffirmed the essential tenet of Roe v Wade,

410 US 113; 93 S Ct 705; 35 L Bd 2d 147 (1973), reh den

410 US 959 (1973), which includes recognition of a

woman's right under the Due Process Clause to terminate

a pregnancy in its early stages, without undue interference

from the state. That right is protected by "a promise of the

Constitution that there is a realm of personal liberty which

the government may not enter." 120 L Ed 2d 695.

The Casey Court explained that Roe "stands at the

intersection of two lines of decisions... ." 120 L Ed 2d

701. Although this holding of Roe was grounded in a

liberty interest relating to intimate relationships, the family,

and childbearing, Roe also may be seen as a rule "of

personal autonomy and bodily integrity, with doctrinal

affinity to cases recognizing limits on governmental power

to mandate medical treatment or to bar its rejection." 120

L Ed 2d 702. The choice of doctrinal category made no

difference to the result in Casey, the Court said. It added

that Roe also could be classified as sui generis. Jd. at

701-702.

Drawing from Cruzan and Casey, the Hobbins

plaintiffs* and defendant Kevorkian advance several

but upon the very bodily integrity of the pregnant woman.

[120 L Ed 2d 727.1

>The Attorney General contends that the Hobbins plaintiffs are

presenting a facial challenge to the statute, and that their claim thus

must fail if there is any set of circumstances under which the assisted

suicide statute would be valid. United States v Salerno, 481 US 739,

745; 107 S Ct 2095; 95 L Ed 2d 697 (1987). The plaintiffs argue that

Casey changed the analysis for a liberty interest, and that Salerno is

not applicable. Both positions, however, assume too much. Before a

facial challenge analysis can proceed, it first must be determined

whether there is a constitutionally protected right. In light of our

decision that there is no liberty interest in committing suicide, it is

27a

theories why this Court should find that there is a

protected liberty interest in assisted suicide, at least with

regard to the terminally ill.“ All of the theories, of

course, assume a fundamental liberty interest in suicide

itself.*°

The parties contend that the right to assistance in

ending one’s life is an integral part of "personal

autonomy." They emphasize that the Casey Court

rejected a "formula" approach to deciding which nghts are

protected by the Fourteenth Amendment, and also the

notion that new rights cannot emerge. Instead, the Court

described the characteristics that are shared by protected

"liberty" interests:

unnecessary for us to determine the proper analysis.

*4No clear definition of "terminal illness” is medically or legally

possible, since only in hindsight is it known with certainty when

someone is going to die. One definition that has been suggested is an

illness so progressed that death is likely within twelve months. Note,

A failed statute, Geoffrey Feiger, and the phrenetic physician:

Physician-assisted suicide in Michigan and a patient-oriented alternative,

28 Val Univ L R 1415, 1434, n 121 (1994). Another definition appears

in MCL 333.21417; MSA 14.15(21417), which concerns eligibility for

admission to a hospice:

An individual shall be considered to have a disease or

condition with a terminal prognosis if, in the opinion of a

physician, the individual’s death is anticipated within 6

months after the date of admission to the hospice.

*An attempt to find a liberty interest in assisted suicide

independent of a liberty interest in suicide itself cannot succeed. If the

Due Process Clause does not encompass a fundamental right to end

one’s life, it cannot encompass a right to assistance in ending one’s life.

*©One commentator points out that assertion of a right of personal

autonomy begs the question, "[aJutonomy to do what?” Tsarouhas,

The case against legal assisted suicide, 20 Ohio Northern Univ L R 793,

803 (1994).

28a

These matters [marriage, procreation,

contraception, family relationships, child rearing,

and education], 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. [120 L Ed

2d 698.]

The proponents of assisted suicide further argue that

the right to commit suicide is analogous to the right to

refuse unwanted medical treatment, to discontinue life

Support, to use contraception, and to choose abortion.

They submit that the decision to end one’s life is the

ultimate right of self-determination, and that the state

cannot abridge the right unless it can articulate a

compelling interest.*’

The advocates of assisted suicide ask us to adopt the

reasoning of a recent federal decision that invalidated the

State of Washington’s criminal prohibition against assisted

suicide. The court held in Compassion in Dying v

While acknowledging that the state may regulate assistance in

suicide, or even actively discourage one from committing suicide, in

order to advance its interest in preserving life, the proponents of

assisted suicide maintain that the state’s legitimate interest does not

extend to prolonging suffering of the terminally ill by criminalizing

suicide assistance. We find it unnecessary to consider the proper reach

of the state’s regulatory interest because we disagree with the

foundational premise that there exists a constitutionally protected

liberty interest to commit suicide.

29a

Washington, 850 F Supp 1454, 1461 (WD Wash, 1994),*

that the right of a terminally ill person to the assistance of

a physician in committing suicide is analogous to the right

of abortion because both fall within the "realm of personal

liberty which the government may not enter.”””

The federal court found that the rationale in Casey

was "almost prescriptive” of the right to end one’s life. The

court held that, under Casey, the state cannot proscribe

assisted suicide if such a ban would unduly burden the

right to commit suicide, ie., if the purpose of the ban is to

place a substantial obstacle in the path of the person

seeking to exercise the right.

The federal court also found that the right of a

terminally ill person to commit suicide with assistance does

not differ in a constitutional sense from the right

recognized in Cruzan to refuse life-sustaining medical

treatment.” The essential premise of the court’s holding

was that, in each instance, the liberty interest is "the

freedom to make choices according to one’s individual

conscience about those matters which are essential to

8 Appeal pending in the United States Court of Appeals for the

Ninth Circuit (Docket No. 94-35534).

“The federal court appears to have limited its ruling to situations

in which the person who wants to die performs the final act that

actually brings about death. The case concerned the right to commit

suicide "by taking a lethal dose of physician-prescribed drugs.” Jd. at

1456.

“The court recognized that the Supreme Court only had

“assumed” such an interest in Cruzan for purposes of analysis, but

expressed confidence that if the issue was squarely presented, such a

right would be found.

30a

personal autonomy and basic human dignity." Jd. at

1461."

We disagree with the federal court that either Cruzan

or Casey preordains that the Supreme Court would find

that any persons, including the terminally ill, have a liberty

interest in suicide that is protected by the Fourteenth

Amendment. Those who assert such a right misapprehend

the nature of the holdings in those cases.

D

In Cruzan, the Court was able to "assume" a protected

liberty interest in the withdrawal of life-sustaining medical

treatment because it was able to distinguish between acts

that artificially sustain life and acts that artificially curtail

life. Although some suggest that this is a distinction

without constitutional significance -- a meaningless exercise

in semantic gymnastics -- the Cruzan majority disagreed”

and so do we.

Indeed, the notion that there is a difference between

“In this regard, we observe that a right of personal autonomy

cannot exist independent of a recognition of human dignity, and that

it would violate the concept of human dignity to measure the value of

a person’s life by that person’s physical and mental condition. See

Cruzan, 497 US 282. Further, because all persons possess a basic right

to personal autonomy, regardless of their physical or mental condition,

there would be no principled basis for restricting a right to commit

suicide to the terminally ill. The inevitability of death adds nothing to

the constitutional analysis.

“Further, the Cruzan Court was careful not to extend its decision

in that case even to other issues concerning medical treatment:

[I]n 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.” [497 US 277-278.]

3la

sree seroma eter

action and inaction is not unfamiliar to the law. For

example, the distinction between "misfeasance"” and

"nonfeasance" (the distinction between active misconduct

and passive inaction) is deeply rooted in the law of

negligence. The reason for the distinction is said to lie in

the fact that a defendant creates a new risk of harm by

misfeasance, but merely fails to benefit another by

nonfeasance. As Dean Prosser explains, the duty to do no

wrong is a legal duty, while the duty to protect against

wrong is, for the most part, a moral obligation. Prosser &

Keeton, Torts (5th ed), § 56, pp 373-374.°

Similarly, whereas suicide involves an affirmative act to

end a life, the refusal or cessation of life-sustaining medical

treatment simply permits life to run its course,

unencumbered by contrived intervention. Put another way,

suicide frustrates the natural course by introducing an

outside agent to accelerate death, whereas the refusal or

withdrawal of life-sustaining medical treatment allows

nature to proceed, ie., death occurs because of the

“Professor Kamisar suggests that the distinction is based more on

historical and pragmatic compromise than on logic. He reasons that

what is at issue are what Dean Guido Calabresi of Yale Law School

called "tragic choices,” i.e., choices that confront us when fundamental

beliefs clash. The goal is to find "solutions that permit us to assert that

we are cleaving to both beliefs in conflict." Concerning the issue of

refusing to begin or to continue life-sustaining medical treatment, the

conflict is between (a) respecting a patient’s wishes, relieving suffering,

and putting an end to seemingly futile medical treatment, and (b)

affirming the supreme value of life and maintaining the salutary

principle that the law protects all human life, no matter how poor the

quality. The professor concludes that the distinction between assisted

suicide and "letting die” is not perfectly neat and logical, then asks,

"But what line is?” Kamisar, After assisted suicide, what next?, Texas

Lawyer (June 13, 1994), pp 1-2.

32a

EE ee

underlying condition.“

The distinction between the withdrawal of life-

sustaining medical treatment and suicide is recognized in

the Guidelines for State Court Decision Making In

Life-Sustaining Medical Treatment, National Center for

State Courts (2d ed), pp 143-145 (1992). The guidelines

include the following:

There are significant moral and legal

distinctions between letting die (including the use

of medications to relieve suffering during the

dying process) and killing (assisted suicide/

euthanasia). In letting die, the cause of death is

seen as the underlying disease process or trauma.

In assisted suicide/euthanasia, the cause of death

is seen as the inherently lethal action itself.

We agree that persons who opt to discontinue life-

sustaining medical treatment are not, in effect, committing

suicide. There is a difference between choosing a natural

death summoned by an uninvited illness or calamity, and

deliberately seeking to terminate one’s life by resorting to

death-inducing measures unrelated to the natural process

of dying. McKay v Bergstedt, 106 Nev 808, 820; 801 P2d

617 (1990).

In affirming a lower court decision to discontinue

artificial sustenance for a profoundly retarded woman who

was in a persistent vegetative state, the Supreme Judicial

Court of Massachusetts similarly emphasized the "well-

settled" principle that withdrawing or refusing life-

sustaining medical treatment is not equivalent to

**A close examinationof the medical-treatmentcases suggests that

they do not establish a right to choose "nonlife" at all, but rather a

right to choose life’s natural progression-a progression that, without

fail, includes for everyone the process of dying.

33a

attempting suicide. Guardianship of Jane Doe, 411 Mass

512, 521; 583 NE2d 1263 (1992), cert den sub nom Doe v

Gross, 503 US ___; 112 S Ct 1512; 117 L Ed 2d 649 (1992).

The vigorous dissents in Doe were not offered in support

of a broader right to die, but rather in recognition of the

state’s paramount interest in protecting life.*

“One dissenting justice, for instance, accused the court of

deciding "to play God.” 411 Mass 525. He complained that the court

had involved itself in the matter ostensibly to protect the interests of

the vulnerable, but then had taken advantage of the patient's

vulnerability "to fashion an argument that she is a social, medical and

familial burden and that her simple, fundamental needs should no

longer be met.” 411 Mass 529. Two other dissenters said that the

majority, in effect, had approved the notion of suicide. They wrote:

Society’s respect for the value of every human life

without reference to its condition, the cornerstone of

American law, is inconsistent with a State’s recognition of a

legal right to commit suicide, assist suicide, or engage in

voluntary euthanasia (mercy killing in accordance with the

wishes of the suffering person). "The life of those to whom

life has become a burden -- of those who are hopelessly

diseased or fatally wounded -- nay, even the lives of

criminals condemned to death, are under the protection of

the law, equally as the lives of those who are in the full tide

of life’s enjoyment, and anxious to continue to live.”

Recognition of the dignity of human life demands resistance,

rather than concession, to the real or imaginary death wishes

of those who are afflicted with pain, depression, a sense of

personal worthlessness, or a sense of burdensomeness to

others. A humane society provides support of every kind,

including moral support, to those who are burdened in order

that they may live....

Can it reasonably be doubted that legal acceptance of

suicide, assisted suicide, and voluntary euthanasia presents

a serious risk that acceptance of involuntary euthanasia

(mercy killing not chosen by the affected individual) is soon

to follow? [411 Mass 531-532 (citation omitted).]

34a

In its first case involving the cessation of life-sustaining

medical treatment, the Kentucky Supreme Court found

that withdrawal of nutrition and hydration from a person

in a persistent vegetative state, and with irreversible brain

damage, fits the medical definition of "permit[ting] the

natural process of dying." DeGrella v Elston, 858 SW2d

698, 707 (Ky, 1993). The court cautioned that it was not

engaging in "an objective inquiry into the quality of life, but

a subjective inquiry into whether the patient wishes the

continuation of medical procedures to interdict ’the natural

process of dying.”

At the point where the withdrawal of life--

prolonging medical treatment becomes solely

another person’s decision about the patient's

quality of life, the individual’s "inalienable right to

life," as so declared in the United States

Declaration of Independence and protected by

Section One (1) of our Kentucky Constitution,

outweighs any consideration of the quality of the

life, or the value of the life, at stake. [Jd. at 702.]

These and other recent decisions of the highest courts

of other states bolster our conclusion that Cruzan does not

portend that the United States Supreme Court would find

a fundamental liberty interest in suicide, let alone assisted

suicide, that is protected by the Due Process Clause of the

Fourteenth Amendment.

E

]

Neither does Casey provide support for the position

that the Due Process Clause encompasses a fundamental

right to commit suicide. In Casey, the Court was not

directly concerned with the establishment of a new right,

but rather with whether the Court should retreat from the

right previously recognized in Roe v Wade. In declining to

35a

overrule Roe, and relying heavily on the doctrine of stare

decisis, the Court emphasized that abortion cases are

unique. 120 L Ed 2d 698.

Although the Court in Casey was not called upon to

determine the merits of a newly asserted due process right,

it is well settled that the Due Process Clause shelters both

procedural and substantive rights. Casey, 120 L Ed 2d 69S.

The latter includes those rights that have been selectively

incorporated from the Bill of Rights, and those that have

been found to be "fundamental."

The state argues that in determining those

fundamental rights not expressly identified in, but

nonetheless protected by, the Due Process Clause, the

analysis must be guided by a search for whether the

asserted right is implicit in the concept of ordered liberty

or deeply rooted in our nation’s history and traditions. See

Palko v Connecticut, 302 US 319, 325-326; 58 S Ct 149; 82

L Ed 288 (1937), and Snyder v Massachusetts, 291 US 97,

105; 54 S Ct 330; 78 L Ed 674 (1934).

Those who urge this Court to find a fundamental

liberty interest in suicide under the Due Process Clause

challenge the traditional analysis, arguing that the United

States Supreme Court articulated in Casey a new, broader

inquiry to be employed in the adjudication of substantive

due process claims. They submit that even if such a right

cannot be inferred from Casey, it nonetheless exists as a

rational extension of those liberty interests previously

recognized under a principled application of the proper

test for determining whether an asserted right is protected

“See also Michael H v Gerald D, 491 US 110, 121-122; 109 S Ct

2333; 105 L Ed 2d 91 (1989).

36a

by the Due Process Clause.’

We acknowledge that the United States Supreme

Court said in Casey that courts are to exercise reasoned

judgment in assessing claims of substantive due process,

and that the analysis is "not susceptible of expression as a

simple rule." 120 L Ed 2d 697. However, we need not

resolve the debate over whether the Court established a

new test because further examination of the principles

discussed in Casey reveals that the constitutional inquiry

described in that case does not fall so far outside the

"implicit in the concept of ordered liberty" and "deeply

rooted in history and tradition" analysis as to lead to a

different conclusion here.

Thus, in the present context, consistent with the

"As suggested by various amici curiae, it is important to the

analysis of substantive due process that the asserted right be framed in

a precise and neutral manner. This is critical in cases involving

end-of-life questions, which are particularly susceptible to

emotion-laden terminology and flawed syllogisms. The approach of the

United States Supreme Court in assessing whether a proposed right is

“fundamental” has been to narrow the threshold inquiry by applying

three principles: (1) the focus should be on the specific activity that

proponents argue is protected by the constitution, taking into account

all relevant facts, (2) the formulation should not be so broad as to

encompass activities that are logically distinct and involve separate

considerations, and (3) the formulation should reasonably

accommodate all of the interests at stake. Bopp & Coleson, Webster

and the future of substantive due process, 28 Duquesne L R 271, 281-291

(1990). See Webster v Reproductive Health Services, 492 US 490; 109

S Ct 3040; 106 L Ed 2d 410 (1989).

The question presented in this case thus is not whether a person

has a constitutional right of self-determination, or a right to define

personal existence, or a right to make intimate and personal choices,

Or a right not to suffer. Rather, the question that we must decide is

whether the constitution encompasses a right to commit suicide and,

if so, whether it includes a right to assistance.

37a

observations of Justice Harlan“ quoted approvingly and

expanded upon in Casey, 120 L Ed 2d 697-698, we must

determine whether the asserted right to commit suicide

arises from a rational evolution of tradition, or whether

recognition of such a right would be a radical departure

from historical precepts. We conclude that the principles

that guide analysis of substantive due process do not

support the recognition of a right to commit suicide.

2

Although acts of suicide are documented throughout

the recorded history of England and this nation, we find no

indication of widespread societal approval. To the contrary,

suicide was a criminal offense, with significant stigmatizing

consequences.” As a policy matter, and for practical

reasons, suicide was not criminalized in most states. 2

LaFave & Scott, Substantive Criminal Law, § 7.8, pp

246-251. Lawmakers recognized the futility of punishment

and the harshness of property forfeiture and other

consequences. Id.

Also, it was assumed that one who committed suicide

was suffering from a mental frailty of one sort or another,

and thus lacked the necessary mens rea to commit a crime.

Marzen, O’Dowd, Crone & Balch, Suicide: A constitutional

right?, 24 Duquesne L R 1, 63, 69, 85-86, 88-89 (1985).

One who assisted a suicide was accorded no such

Poe v Ullman, 367 US 497, 542; 81 S Ct 1752; 6 L Ed 2d 989

(1961) (Harlan, J., dissenting from dismissal on jurisdictional grounds).

*°At common law, suicide sometimes was referred to as "self

murder." Consequences included the forfeiture of property and an

ignominious burial. Tsarouhas, n 36 supra at 795, citing Glanville, The

Sanctity of Life and the Criminal Law, 261-62 (1957), and 4 Blackstone,

Commentaries on the Laws of England (Oxford: Clarendon Press,

1769), pp 189, 190.

38a

concession, however.” At the time the Fourteenth

Amendment was ratified, at least twenty-one of the

thirty-seven existing states (including eighteen of the thirty

ratifying states) proscribed assisted suicide either by statute

or as a common law offense. Jd. at 76.

Presently, a substantial number of jurisdictions have

specific statutes that criminalize assisted suicide, and the

There is no historical exception for physician-assisted suicide. To

the contrary, such involvement traditionally has been regarded as

contrary to the Hippocratic Oath, which includes the following

sentence: "To please no one will I prescribe a deadly drug, nor give

advice which may cause his death.”” Steadman’s Medical Dictionary

(Sth Unabridged Lawyers’ Ed), p 650.

*'Alaska, Alas Stat 11.41.120(a)(2); Arizona, Ariz Rev Stat Ann

13-1103(A)(3); Arkansas, Ark Code Ann 5-10-104(a)(2); California,

Cal Penal Code 401; Colorado, Colo Rev Stat 18-3-104(1)(b);

Connecticut, Conn Gen Stat Ann 53a-56(a)(2); Delaware, Del Code

Ann, tit 11, § 645; Florida, Fla Stat Ann 782.08; Georgia, Ga Code

Ann 16-5-5(b); Hawaii, Hawaii Rev Stat 707-702(1)(b); Illinois, 720 Ill

Comp Stat Ann 5/12-31; Indiana, Ind Stat Ann 35-42-1-2: Kansas, Kan

Stat Ann 21-3406; Kentucky, Ky Rev Stat 216:302:; Maine, Me Rev Stat

Ann, tit 17-A, § 204; Michigan, Act of December 15, 1992, 1992 PA

270 (creating Michigan commission on death and dying and prohibiting

certain acts pertaining to suicide assistance); Minnesota, Minn Stat

Ann 609.215; Mississippi, Miss Code Ann 97-3-49; Missouri, Mo Rev

Stat 565.023; Montana, Mont Code Ann 45-5-105; Nebraska, Neb Rev

Stat 28-307; New Hampshire, NH Rev Stat Ann 630:4; New J ersey, NJ

Stat Ann 2C:11-6; New Mexico, NM Stat Ann 30-2-4: New York, NY

Penal Law 120.30; North Dakota, ND Cent Code 12.1-16-04;

Oklahoma, Okla Stat Ann, tit 21, §§ 813 to 818: Pennsylvania, 18 Pa

Cons Stat Ann 2505; Puerto Rico, PR Laws Ann, tit 33, § 4009; South

Dakota, SD Codified Laws Ann 22-16-37; Tennessee, Tenn Code Ann

39-13216; Texas, Tex Penal Code Ann 22.08: Virgin Island, Vi Code,

tit 14, § 2141; Washington, Wash Rev Code Ann 9A.36.060; and

Wisconsin, Wis Stat Ann 940.12. The State of Oregon also has a

Statute that forbids assisted suicide. Or Rev Stat 163.125(1)(b).

However, we note that Oregon voters passed a ballot initiative called

39a

Model Penal Code also provides for criminal penalties.~

Further, nearly all states expressly disapprove of suicide

and assisted suicide either in statutes dealing with durable

powers of attorney in health-care situations,” or in "living

will" statutes. In addition, all states provide for the

the Death with Dignity Act on November 8, 1994. The act, which

permits physicians, under certain circumstances, to prescribe lethal

medication for terminally ill persons, was scheduled to take effect

December 8, 1994. However, a federal district court has issued a

temporary restraining order pending a hearing on the matter.

~The Model Penal Code of the American Law Institute prohibits

assisted suicide and grants a privilege to those who use force to

prevent a suicide. Sections 210.5, p 91, and 3.07(5), pp 104-105.

See, for example, MCL 700.496; MSA 27.5496, which permits the

appointment of a "patient advocate” to act on the patient’s behalf if the

patient is not competent to do so. Subsection 20 of the statute states

that designation of a patient advocate “shall not be construed to

condone, allow, permit, authorize, or approve suicide or homicide."

MCL 700.496(20); MSA 27.5496(20). Other jurisdictions with similar

provisions in statutes governing durable powers of attorney in

health-care situations include the District of Columbia, DC Code Ann

21-2212; Illinois, Ill Comp Stat Ann, ch 755, § 40/50; Indiana, Ind Code

Ann 30-5-5-17(b); Iowa, Iowa Code Ann 144B.12.2; Massachusetts,

Mass Ann Laws, ch 201D, § 12; New York, NY Pub Health 2989(3);

North Dakota, ND Cent Code 23-06.5-01: and Rhode Island, RI Gen

Laws 23-4.10-9(f).

“Jurisdictions that have such provisions in “living will” statutes

include Alabama, Ala Code 22-8A-10; Alaska, Alas Stat 18.12.080(f);

Arizona, Ariz Rev Stat Ann 36-3210; Arkansas, Ark Code Ann

20-17-210(g); California, Cal Health & Safety Code 7191.5(g);

Colorado, Colo Rev Stat 15-18-112(1); District of Columbia, DC Code

Ann 6-2430; Florida, Fla Stat Ann 765.309(1): Georgia, Ga Code Ann

88-4111(b): Hawaii, Hawaii Rev Stat 327D-13; Illinois, Ill Comp Stat

Ann, ch 755, § 35/9(f); Indiana, Ind Code Ann 16-36-4-19; Iowa, lowa

Code Ann 144A.11.6; Kansas, Kan Stat Ann 65-28, 109; Kentucky, KY

Rev Stat Ann 311.637; Louisiana, La Rev Stat Ann, 40:1299.58.19.A;

Maine, Me Rev Stat Ann, tit 18-A, § 5-711(g); Maryland, Md Health

40a

involuntary commitment of persons who may harm

themselves as the result of mental illness, and a number

of states allow the use of nondeadly force to thwart suicide

attempts.©

It is thus incorrect to conclude, on the basis of the

absence of criminal penalties for an act of suicide itself and

the existence of a pragmatic capacity to commit suicide,

that there is a constitutional right to commit suicide.*’

Such a right is not expressly recognized anywhere in the

Gen Code Ann 5-611(c); Minnesota, Minn Stat Ann 145B.14;

Mississippi, Miss Code Ann 41-41-117(2); Missouri, Mo Ann Stat

459.055(5); Montana, Mont Code Ann 50-9-205(7); Nebraska, Neb Rev

Stat 20-412(7); Nevada, Nev Rev Stat Ann 449.670; New Hampshire,

NE Rev Stat Ann 137-H:10(II); North Carolina, NC Gen Stat

90-320(b); North Dakota, ND Cent Code 23-06.4-01; Ohio, Ohio Rev

Code Ann, tit 21, § 2133.12(D); Oklahoma, Okla Stat Ann, tit 63, §

3101.12(g); Oregon, Or Rev Stat 127.645(1); Pennsylvania, 20 Pa Cons

Stat Ann 5402(b); Rhode Island, RI Gen Laws 23-4.11-10(f); South

Carolina, SC Code Ann 44-77-130: South Dakota, SD Cod Laws Ann

34-12D-20; Texas, Tex Health & Safety Code Ann 672.020; Utah, Utah

Code Ann 75-2-1118; Virginia, Va Code Ann 54.1-2990; Washington,

Wash Rev Code Ann 70.122.100; West Virginia, W Va Code 16-3010;

and Wisconsin, Wis Stat Ann 154.11(6).

See, e.g., MCL 330.1401(a); MSA 14.800(401)(a).

Alas Stat 11.81.430(a)(4); Ark Code Ann 5-10-104(a)(2); Colo

Rev Stat 18-1-703(1)(d); Hawaii Rev Stat 703-308(1); Ky Rev Stat

503.100(1)(a); Mo Rev Stat 563.061(5); NH Rev Stat Ann 627:6(VI);

NJ Stat Ann 2C:3-7(e); NY Penal Law 35.10(4); Or Rev Stat 161.209:

18 Pa Cons Stat Ann 508(d); Wis Stat Ann 939.48(5).

*’For reasons apparent in our analysis of the due process claims,

we also reject the argument that Michigan’s assisted suicide statute is

invalid because it denies equal protection to terminally ill persons who

want help in ending their lives, i.e., it denies them a right enjoyed by

terminally ill persons who opt to forgo or discontinue life-sustaining

medical treatment. As we explained, the two situations are not the

same for purposes of constitutional analysis.

4la

United States Constitution or in the decisions of the

United States Supreme Court, and cannot be reasonably

inferred.” In fact, as we observed earlier in this opinion,

those courts that have found a right to refuse to begin or

to continue life-sustaining medical treatment have done so

only after concluding that such refusal is wholly different

from an act of suicide.”

Indeed, the United States Supreme Court repeatedly

and unequivocally has affirmed the sanctity of human life

and rejected the notion that there is a right of

self-destruction inherent in any common-law doctrine or

constitutional phrase. In Cruzan, the majority observed:

As a general matter, the States -- indeed, all

civilized nations -- demonstrate their commitment

to life by treating homicide as a serious crime.

Moreover, the majority of States in this country

have laws imposing criminal penalties on one who

assists another to commit suicide. We do not think

a State is required to remain neutral in the face of

an informed and voluntary decision by a physically

“The Supreme Court of Canada said in Rodriguez v British

Columbia, 107 DLR4th 342, 401-404 (1993), that no western

democracy expressly permits assisted suicide. To the contrary, the

criminal codes of most countries include a blanket ban of such

conduct, and such proscriptions have not been adjudged to be

unconstitutional or contrary to fundamental human rights.

The right to refuse medicai treatment meets the "ordered liberty”

and the “historical underpinnings” tests because it is rooted in the

common-law doctrine of informed consent, which embodies the notion

of bodily integrity. A person may refuse life-sustaining medical

treatment because the treatment itself is a violation of bodily integrity.

Suicide enjoys no such foundational support, however. When one acts

to end one’s life, it is the intrusion of the lethal agent that violates

bodily integrity.

42a

able adult to starve to death. [497 US 280.]

On the basis of the foregoing analysis, we would hold

that the right to commit suicide is neither implicit in the

concept of ordered liberty nor deeply rooted in this

nation’s history and tradition. It would be an impermissibly

radical departure from existing tradition, and from the

principles that underlie that tradition, to declare that there

is such a fundamental right protected by the Due Process

Clause.

F

We are keenly aware of the intense emotions and

competing moral philosophies that characterize the present

debate about suicide in general, and assisted suicide in

particular. The issues do not lend themselves to simple

answers. However, while the complexity of the matter does

not permit us to avoid the critical constitutional questions,

neither does it, under the guise of constitutional

interpretation, permit us to expand the judicial powers of

this Court, especially where the question clearly is a policy

one that is appropriately left to the citizenry for resolution,

either through its elected representatives or through a

ballot initiative under Const 1963, art 2. § 9.

We are mindful of Justice Cardozo’s admonition nearly half a

century ago:

"The judge, even when he is free, is still not wholly free.

He is not to innovate at pleasure. He is not a knight-errant,

roaming at will in pursuit of his own ideal of beauty or of

goodness. He is to draw his inspiration from consecrated

principles. He is not to yield to spasmodic sentiment, to

vague and unregulated benevolence. Be is to exercise a

discretion informed by tradition, methodized by analogy,

disciplined by system, and subordinated to ’the primordial

necessity of order in the social life.’ Wide enough in all

conscience is the field of discretion that remains.” [The

43a

We would hold that the Due Process Clause of the

federal constitution does not encompass a fundamental

right to commit suicide, with or without assistance, and

regardless of whether the would-be assistant is a physician.

VI

A

Finally, we turn to the issue presented in the Oakland

County case involving the deaths of Sherry Miller and

Marjorie Wantz. Their deaths occurred before the

enactment of Michigan’s ban on assisted suicide, and the

question is whether defendant Kevorkian can be

prosecuted for his role in the deaths.

Each woman was said to be suffering from a condition

that caused her great pain or was severely disabling. Each

separately had sought defendant Kevorkian’s assistance in

ending her life. The women and several friends and

relatives met the defendant at a cabin in Oakland County

on October 23, 1991.

According to the testimony presented at the

defendant’s preliminary examination, the plan was to use

his "suicide machine.” The device consisted of a board to

which one’s arm is strapped to prevent movement, a needle

to be inserted into a blood vessel and attached to IV

tubing, and containers of various chemicals that are to be

released through the needle into the bloodstream. Strings

are tied to two of the fingers of the person who intends to

die. The strings are attached to clips on the IV tubing that

control the flow of the chemicals. As explained by one

Nature of the Judicial Process, quoted in In re President &

Directors of Georgetown College, Inc, 118 US App DC 90,

97; 331 F2d 1010 (1964) (Burger, J., concurring in dissent).

cert den 377 US 978 (1964).]

44a

witness, the person raises that hand, releasing a drug called

methohexital, which was described by expert witnesses as

a fast-acting barbiturate that is used under controlled

circumstances to administer anesthesia rapidly.“ When

the person falls asleep, the hand drops, pulling the other

string, which releases another clip and allows potassium

chloride to flow into the body in concentrations sufficient

to cause death.

The defendant tried several times, without success, to

insert the suicide-machine needle into Ms. Miller’s arm and

hand. He then left the cabin, returning several hours later

with a cylinder of carbon monoxide gas and a mask

apparatus. He attached a screw driver to the cylinder, and

showed Ms. Miller how to use the tool as a lever to open

the gas valve.

The defendant then turned his attention to Ms. Wantz.

He was successful in inserting the suicide-machine needle

into her arm. The defendant explained to Ms. Wantz how

to activate the device so as to allow the drugs to enter her

blood stream. The device was activated,” and Ms. Wantz

a. large enough dose can cause the recipient to stop breathing.

“No one who testified at the preliminary examination actually

witnessed the activation of the device. The only persons in the cabin

at that time were the decedents, the defendant, and the defendant’s

sister, who since has died. Ms. Wantz’ husband was walking away from

the cabin. He testified as follows:

Q. You don’t know who pulled the string?

A. I have no idea. She knew that she had to pull the

string when I left.

Q. You don’t know if she tried to pull the string and it

didn’t work and Kevorkian pushed her hand at all, do you?

A. I can say this, when I left the room she was in the

Process of trying to pull the string.

4Sa

died.”

The defendant then placed the mask apparatus on Ms.

Miller. The only witness at the preliminary examination

who was present at the time said that Ms. Miller opened

the gas valve by pulling on the screw driver. The cause of

her death was determined to be carbon-monoxide

poisoning.

The defendant was indicted on two counts of open

murder. He was bound over for trial following a

preliminary examination. However, in circuit court, the

defendant moved to quash the information and dismiss the

charges, and the court granted the motion.

B

A divided Court of Appeals reversed. People v

Kevorkian No 1, 205 Mich App 180; 517 NW2d 293 (1994).

The Court of Appeals majority relied principally on People

v Roberts, 211 Mich 187; 178 NW 690 (1920).

In Roberts, the defendant’s wife was suffering from

advanced multiple sclerosis and in great pain. She

previously had attempted suicide and, according to the

Q. You don’t know who pulled the string? That’s what

you're telling me?

A. I can tell you she was in the process of trying to pull

the string when I left the room, but I did not see her pull

the string. The only thing I can take and tell you is once I

left the room, Dr. Kevorkian did -- I heard Dr. Kevorkian

say, "Marj, you have to hold your hand up,” and that is the

only thing I know.

“The pathologist who performed the autopsy testified that there

was a lethal level of methohexital in Ms. Wantz’ blood, but that

because of the body’s release of potassium on death, no conclusions

could be drawn regarding potassium chloride.

46a

‘

defendant’s statements at the plea proceeding, requested

that he provide her with poison. He agreed, and placed a

glass of poison within her reach. She drank the mixture

and died. The defendant was charged with murder. He

pleaded guilty, and the trial court determined the crime to

be murder in the first degree.

The defendant appealed. He argued, among other

things, that because suicide is not a crime in Michigan, and

his wife thus committed no offense, he committed none in

acting as an accessory before the fact. The Court rejected

that argument, explaining:

If we were living in a purely common-law

atmosphere with a strictly common-law practice,

and defendant were charged with being guilty as

an accessory of the offense of suicide, counsel’s

argument would be more persuasive than it is. But

defendant is not charged with that offense. He is

charged with murder and the theory of the people

was that he committed the crime by means of

poison. He has come into court and confessed that

he mixed poison with water and placed it within

her reach, but at her request. The important

question, therefore, arises as to whether what

defendant did constitutes murder by means of

poison. [211 Mich 195.]

After discussing a similar Ohio case, Blackburn v State,

23 Ohio St 146 (1872), the Roberts Court concluded:

We are of the opinion that when defendant

mixed the paris green with water and placed it

within reach of his wife to enable her to put an

end to her suffering by putting an end to her life,

he was guilty of murder by means of poison within

the meaning of the statute, even though she

requested him to do so. By this act he deliberately

47a

placed within her reach the means of taking her

own life, which she could have obtained in no

other way by reason of her helpless condition. [211

Mich 198.]

In the instant case, defendant Kevorkian had argued

that the discussion of this issue in Roberts was dicta

because the defendant in that case had pleaded guilty of

murder, and thus the controlling authority was People v

Campbell, 124 Mich App 333: 335 NW2d 27 (1983).”

The Court of Appeals majority rejected that view and said

that Roberts controlled the issue presented in the instant

case.

C

We agree with the Court of Appeals that the holding

“In Campbell, the decedent and the defendant had been drinking

heavily at the decedent’s home. The decedent had been talking about

suicide, and the fact that he did not have a gun. The defendant offered

to sell the decedent a gun. At first, the decedent did not accept the

offer. However, defendant Campbell persisted in alternately

encouraging and ridiculing him. Eventually, the defendant provided the

decedent with a gun and five shells. The defendant and the decedent’s

girlfriend left, and some time later, the decedent shot himself. The

defendant was charged with open murder.

Although the defendant failed to persuade the circuit court to

quash the information, the Court of Appeals reversed. Among other

things the Court said that more recent Supreme Court decisions had

"cast doubt” that Roberts remained good law. The Court also noted

that the trial judge in Roberts had "assumed that a murder had

occurred and considered only the degree of that crime.” 124 Mich App

337.

The Campbell panel further found that the defendant did not

have the required "present intention to kill.” He only "hoped" that the

decedent would kill himself, and “hope” is not the degree of intent

required to sustain a charge of murder. Jd. at 339.

48a

‘

in Roberts was not dicta.© While it is true that defendant

Roberts pleaded guilty of placing a poisonous mixture at

the bedside of his sick wife, knowing that she intended to

use it to commit suicide, nothing in the opinion indicates

that this Court based its affirmance of the conviction of

first-degree murder on the fact that the conviction

stemmed from a guilty plea.

However, it is not sufficient in the instant case to

decide simply that the holding in Roberts was not dicta.

We must determine further whether Roberts remains

viable, because, as noted in People v Stevenson, 416 Mich

383, 390; 331 NW2d 143 (1982):

This Court has often recognized its authority, and

indeed its duty, to change the common law when

change is required.

The crime of murder has been classified and

categorized by the Legislature, see MCL 750.316; MSA

28.548 and MCL 750.317; MSA 28.549, but the definition

of murder has been left to the common law. People v

Aaron, 409 Mich 672; 299 NW2d 304 (1980); People v

- "When a court of last resort intentionally

takes up, discusses and decides a question

germane to, though not necessarily decisive of, the

controversy, such decision is not a dictum but is a

judicial act of the court which it will thereafter

recognize as a binding decision." Chase v

American Cartage Co. Inc. 176 Wis 235, 238 (186

NW 598 [1922]). [Detroit v Public Utilities Comm,

288 Mich 267. 299-300: 286 NW 368 (1939).]

Citing People v Aaron, 409 Mich 672, 713; 299 NW2d 304

(1980); Placek v Sterling Heights, 405 Mich 638; 275 NW2d 511 (1979);

Serafin v Serafin, 401 Mich 629; 275 NW2d 461 (1977); Beech Grove

Investment Co v Civil Rights Comm, 380 Mich 405; 157 NW2d 213

(1968); Myers v Genesee Auditor, 375 Mich 1: 133 NW2d 190 (1965).

49a

Scott, 6 Mich 287 (1859). Unless abrogated by the

constitution, the Legislature, or this Court, the common

law applies. Const 1963, art 3, § 7; Aaron, supra at 722-723.

Under the common-law definition, "’[m]urder is where

a person of sound memory and discretion unlawfully kills

any reasonable creature in being, in peace of the state,

with malice prepense or aforethought, either express or

implied.” Aaron, supra at 713, quoting People v Potter, 5

Mich 1 (1858). Implicit in this definition is a finding that

the defendant performed an act that caused the death of

another. To convict a defendant of criminal homicide, it

must be proven that death occurred as a direct and natural

result of the defendant’s act. People v Barnes, 182 Mich

179, 196; 148 NW 400 (1914). See also People v Flenon, 42

Mich App 457, 460; 202 NW2d 471 (1972) ("a defendant’s

[first-degree murder] conviction should only be sustained

where there is a reasonable and direct causal connection

between the injury and death").

Early decisions indicate that a murder conviction may

be based on merely providing the means by which another

commits suicide.” However, few jurisdictions, if any,

have retained the early common-law view that assisting in

a suicide is murder. The modern statutory scheme in the

majority of states treats assisted suicide as a separate

crime, with penalties less onerous than those for murder.

See, e.g, 1993 PA 3, which was enacted by our own

Legislature.™

®7See Marzen, supra at 79-81.

See also n 51. In addition, the Model Penal Code incorporates

this view:

(1) Causing Suicide as Criminal Homicide. A person may be

convicted of criminal homicide for causing another to

commit suicide only if he purposely causes such suicide by

50a

Recent decisions draw a distinction between active

participation in a suicide and involvement in the events

leading up to the suicide, such as providing the means.

Frequently, these cases arise in the context of a claim by

the defendant that the prosecution should have been

brought under an assisted suicide statute. The courts

generally have held that a person may be prosecuted for

murder if the person’s acts went beyond the conduct that

the assisted suicide statute was intended to cover.

For example, in People v Cleaves, 229 Cal App 3d 367;

force, duress or deception.

(2) Aiding or Soliciting Suicide as an Independent Offense.

A person who purposely aids or solicits another to commit

suicide is guilty of a felony of the second degree if his

conduct causes such suicide or an attempted suicide, and

otherwise of a misdemeanor. [Model Penal Code, § 210.5.]

In commentary to its provision detailing sanctions against suicide

assistance, the drafters of the Model Penal Code discussed the

rationale supporting its recommendations, as well as expressing

concern over the severity of the penalty imposed in Roberts:

The fact that penal sanctions will prove ineffective to

deter the suicide itself does not mean that the criminal law

is equally powerless to influence the behavior of those who

would aid or induce another to take his own life. Moreover,

in principle it would seem that the interests in the sanctity of

life that are represented by the criminal homicide laws are

threatened by one who expresses a willingness to participate

in taking the life of another, even though the act may be

accomplished with the consent, or at the request, of the

suicide victim. On the other hand, cases such as People v

Roberts, where a husband yielded to the urging of his

incurably sick wife to provide her with the means of

self-destruction, sorely test the resiliency of a principle that

completely fails to take account of the claim for mitigation

that such a circumstance presents. [ALA, Model Penal Code

§ 210.5, commentary at 100.]

Sla

280 Cal Rptr 146 (1991), the defendant was charged with

first degree murder in the strangulation death of another

man. The trial court had refused a defense request to

instruct the jury on the statutory offense of aiding and

abetting a suicide, and the jury convicted him of

second-degree murder.

In deciding whether an instruction on the statutory

offense of aiding and abetting suicide should have been

given, the appellate court accepted the defendant's detailed

version of the events. The decedent in Cleaves was

suffering from AIDS and wanted the defendant’s assistance

in strangling himself. With the defendant’s help, the

decedent trussed his body in an arched position, with his

face down on a pillow. The defendant’s role, when the

decedent "pulled down" on the truss to effect strangulation,

was to put his hand on the decedent’s back to steady him.

At one point, when the sash slipped from the decedent’s

neck, the defendant rewrapped it at the decedent’s request

and retied it to the decedent’s hands. By straightening out

his body with his feet, the decedent was in sole control of

how tight the sash was around his neck. In holding that the

trial judge properly refused to instruct the jury under the

assisted suicide statute, the appeals court said:

[The statute] provides: "Every person who

deliberately aids, or advises, or encourages another

to commit suicide, is guilty of a felony.” As

explained by our Supreme Court, the "key to

distinguishing between the crimes of murder and

of assisting suicide is the active or passive role of

the defendant in the suicide. If the defendant

merely furnishes the means, he is guilty of aiding

a suicide; if he actively participates in the death of

the suicide victim, he is guilty of murder." In re

Joseph G (1983) 34 Cal 3d 429, 436 1194 Cal Rptr

163, 667 P2d 1176, 40 ALR4th 690]. The statute

52a

providing for a crime less than murder "does not

contemplate active participation by one in the

overt act directly causing death. It contemplates

some participation in the events leading up to the

commission of the final overt act, such as

furnishing the means for bringing about death, the

gun, the knife, the poison, or providing the water,

for the use of the person who himself commits the

act of self-murder. But where a person actually

performs, or actively assists in performing, the

overt act resulting in death, such as shooting or

stabbing the victim, administering the poison, or

holding one under water until death takes place by

drowning, his act constitutes murder, and it is

wholly immaterial whether this act is committed

pursuant to an agreement with the victim... .”"

People v Matlock (1959) 51 Cal 2d 682, 694 [336

P2d 505; 71 ALR2d 605]. [1229 Cal App 3d 375.]

In Cleaves, viewing the evidence most favorable for the

defense, the court said there were no facts to support the

requested instruction on aiding and abetting an assisted

suicide. Although the defendant may not have applied

pressure to the ligature itself, he admitted that his act of

holding the decedent to keep him from falling off the bed

was designed to assist the decedent in completing an act of

strangulation. "This factual scenario indisputably shows

active assistance in the overt act of strangulation," the

court said. Jd. at 376.

Similarly, in State v Sexson, 117 NM 113; 869 P2d 301

(NM App, 1994), cert den 117 NM 215 (1994), the

defendant was charged with first-degree murder in

connection with the fatal shooting of his wife. He was

convicted of second-degree murder following a bench trial,

and argued that he should have been prosecuted under the

State’s assisted suicide statute.

53a

The only fact in dispute in Sexson was whether it was

the defendant or the decedent who actually pulled the

trigger of the rifle that killer her. It was not disputed that

there was a suicide agreement between the two, and that

the pact was genuine. The defendant claimed simply to

have held the rifle in position while the decedent pulled

the trigger, and that he had failed to then kill himself

because he "freaked out" when the decedent continued to

breathe after being shot.

The appellate court rejected the defendant’s argument

that he could not be prosecuted under the more general

murder statute because of the specific assisted suicide

statute. In so doing, the court emphasized that the two

statutes proscribed different conduct:

The wrongful act triggering criminal liability

for the offense of assisting suicide is "aiding

another" in the taking of his or her own life. It is

well accepted that "aiding, n in the context of

determining whether one is criminally liable for

their involvement in the suicide of another, is

intended to mean providing the means to commit

suicide, not actively performing the act which

results in death... .

There are three different views about the

criminal liability of one who, whether pursuant to

a suicide pact or not, solicits (by talk) or aids (as

by providing the means of self-destruction)

another to commit suicide. Occasionally aiding or

soliciting suicide has been held to be no crime at

all on the ground that suicide is not criminal. That

view is most certainly unsound. At one time many

jurisdictions held it to be murder, but a great

many states now deal specifically with causing or

aiding suicide by statute, treating it either as a

form of manslaughter or as a separate crime. Such

54a

en

‘

Statutes typically do "not contemplate active

participation by one in the overt act directly

causing death," and thus their existence is not

barrier to a murder conviction in such

circumstances.

In contrast, the wrongful act triggering

criminal liability for second degree murder is

"kill[ing]" or "caus[ing] the death" of another. In

the context of the instant case, the second degree

murder statute is aimed at preventing an

individual from actively causing the death of

someone contemplating suicide, whereas the

assisting suicide statute is aimed at preventing an

individual from providing someone contemplating

suicide with the means to commit suicide. Thus,

the two statutes do not condemn the same offense.

(117 NM __; 869 P2d 304 (citations

omitted). ]

Turning to the evidence presented in Sexson, the court

reiterated that the distinction accepted in other

jurisdictions between murder and aiding suicide "generally

hinges upon whether the defendant actively participates in

the overt act directly causing death, or whether he merely

provides the means of committing suicide." 869 P2d

304-305. This distinction applies even where the decedent

has given consent or requested that actual assistance be

provided. In Sexson, the defendant admitted holding the

rifle in a position calculated to assure the decedent’s death.

The court concluded: "That action transcends merely

providing Victim a means to kill herself and becomes

active participation in the death of another." 869 P2d 305.

In the years since 1920, when Roberts was decided,

interpretation of causation in criminal cases has evolved in

Michigan to require a closer nexus between an act and a

death than was required in Roberts. See, e.g., People v

5Sa

Flenon, supra; People v Scott, 29 Mich App 549, 558; 185

NW2d 576 (1971). The United States Supreme Court also

has addressed the importance of relating culpability to

criminal liability. See Tison v Arizona, 481 US 137; 107 S

Ct 1676; 95 L Ed 2d 127 (1987); Mullaney v Wilbur, 421

US 684, 697-698; 95 S Ct 1881; 44 L Ed 2d 508 (1975).

In the context of participation in a suicide, the

distinction recognized in In re Joseph G, supra at 436,

constitutes the view most consistent with the overwhelming

trend of modern authority. There, the California Supreme

Court explained that a conviction of murder is proper if a

defendant participates in the final overt act that causes

death, such as firing a gun or pushing the plunger on a

hypodermic needle. However, where a defendant is

involved merely "in the events leading up to the

commission of the final overt act, such as furnishing the

means... ," a conviction of assisted suicide is proper. Jd.

As noted, this Court has modified the common law

when it perceives a need to tailor culpability to fit the

crime more precisely than is achieved through application

of existing interpretations of the common law. See, e.g.,

Stevenson, supra; Aaron, supra. For the reasons given, we

perceive such a need here. Accordingly, we would overrule

Roberts to the extent that it can be read to support the

view that the common-law definition of murder

encompasses the act of intentionally providing the means

by which a person commits suicide®. Only where there

Because Roberts involved a guilty plea, the facts were not well

developed. If in fact the defendant’s only act was to prepare the poison

and leave it for his wife to drink, and she did so knowingly and

voluntarily, we would not find that sufficient participation to constitute

murder. In the suicide setting, it is not enough that the defendant

merely provided the means of death to be convicted of murder, or

participated in the events leading up to the act that directly caused

56a

‘

is probable cause to believe that death was the direct and

natural result of a defendant’s act can the defendant be

properly bound over on a charge of murder.” Where a

defendant merely is involved in the events leading up to

the death, such as providing the means, the proper charge

death if the defendant did not participate in the act that did directly

cause death.

However, there may be circumstances where one who recklessly

or negligently provides the means by which another commits suicide

could be found guilty of a lesser offense, such as involuntary

manslaughter. There are a number of cases in which providing a gun

to a person known to the defendant to be intoxicated and despondent

or agitated has constituted sufficient recklessness to support such a

conviction. For example, in People v Duffy, 79 NY2d 611, 613; 595

NE2d 814 (1992), the defendant provided a gun to the intoxicated and

despondent decedent, who had said he wanted to kill himself, and

urged him to "blow his head off." The decedent proceeded to shoot

himself. Duffy was indicted for two counts of manslaughter in the

second degree. The first count alleged that he had intentionally caused

or aided the deceased in committing suicide (NY Penal Law §

125.15131), and the second alleged that he had recklessly caused the

death (NY Penal Law § 125.15[1]). After a jury trial, the defendant was

acquitted of the first count, but convicted of the second. The New

York Court of Appeals concluded:

[T]he conduct with which defendant was charged clearly

fell within the scope of section 125.15 (1)’s proscription

against recklessly causing the death of another person. As

the People aptly observe, a person who, knowing that

another is contemplating immediate suicide, deliberately

prods that person to go forward and furnishes the means of

bringing about death may certainly be said to have

"consciously disregard{ed] a substantial and unjustifiable risk"

that his actions would result in the death of that person . .

. . [79 NY2d 614]

See also State v Bier, 181 Mont 27; 591 P2d 1115 (1979);

Persampieri v Commonwealth, 343 Mass 19; 175 NE2d 387 (1961);

State v Marti, 290 NW2d 570 (Iowa, 1980).

S7a

is assisting in a suicide.

However, even absent a statute that specifically

proscribes assisted suicide, prosecution and punishment for

assisting in a suicide would not be precluded. Rather, such

conduct may be prosecuted as a separate common-law

offense under the saving clause of MCL 750.505; MSA

28.773:”

Any person who shall commit any indictable

offense at the common law, for the punishment of

which no provision is expressly made by any

statute of this state, shall be guilty of a felony,

punishable by imprisonment in the state prison not

more than 5 years or by a fine of not more than

$10,000.00, or both in the discretion of the

court.”

Our reinterpretation of the common law does not

enlarge the scope of criminal liability for assisted suicide,

but rather reduces liability where a defendant merely is

"Suicide is, by definition, the killing of oneself. Our analysis

recognizes a distinction between killing oneself and being killed by

another. Because suicide is not murder and is no longer viewed as

criminal, see above at pp 38-39, assisting suicide is its own species of

crime.

Our opinion would leave undisturbed the law of aiding and

abetting because aiding and abetting necessarily requires the

commission of an offense by a principal. See People v Kelly, 423 Mich

261; 378 NW2d 365 (1985).

See State v Carney 69 NJL 478, 480; 55 A 44 (1903), (concluding

that a failed attempt at suicide was criminal under the New Jersey

saving clause, which made all “offenses of an indictable nature at

common law,” not otherwise provided for, misdemeanors); State v

Willis, 255 NC 473; 121 SE2d 854 (1961) (finding an attempt to

commit suicide to be an indictable misdemeanor under North

Carolina’s saving clause).

58a

involved in the events leading up to the suicide, such as

providing the means. Therefore, there is no violation of the

prohibition on ex post facto laws. US Const, art I, § 9;

Const 1963, art 1, § 10. See Stevenson, supra at 399-400.

D

The decision regarding whether an examining

magistrate erred in binding a defendant over for trial is

one that should be made in the first instance by the trial

court. In this case, the lower courts did not have the

benefit of the analysis set forth in this opinion for

evaluating the degree of participation by defendant

Kevorkian in the events leading to the deaths of Ms.

Wantz and Ms. Miller.” Accordingly, we remand this

matter to the circuit court for reconsideration of the

defendant’s motion to quash in light of the principles

discussed in this opinion.”

Vil

For the reasons given, we would reverse the judgment

of the Court of Appeals in Docket Nos. 99591 and 99759,

and remand the cases to the respective circuit courts for

further proceedings. In Docket Nos. 99752 and 99758, we

would reverse the judgment of the Court of Appeals with

3A lower court’s ruling on a motion to quash involving factual

matters is reviewed by an appellate court for an abuse of discretion,

and rulings regarding issues of law are reversed if erroneous. People

v Thomas, 438 Mich 448, 452; 475 NW2d 288 (1991).

™Remanding to the circuit court for reconsideration of the motion

to quash will not usurp the fact-finding function of the ultimate trier

of fact. Bindover decisions by magistrates, and the review of those

decisions by trial courts, necessarily involve preliminary factual

determinations, although the standard to be employed is one of

probable cause rather than guilt beyond a reasonable doubt. MCR

6.110(E).

59a

regard to the claimed violation of Const 1963, art 4, § 24,

and affirm in all other respects. Finally, in Docket No.

99674, we would vacate the judgment of the Court of

Appeals, and remand the case to the circuit court for

further proceedings in accordance with this opinion.

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

I agree with the lead opinion that § 7 of 1993 PA 3

does not violate the Title-Object Clause of the Michigan

Constitution’ in its entirety. I also agree with the lead

opinion’s result and rationale finding that the act is not

violative of a fundamental right protected by the Due

Process Clause of the state or federal constitution. In

addition, as stated in the observations of Justice Harlan?2

quoted approvingly in Planned Parenthood of Southeastern

Pennsylvania v Casey, 505 US __; 112 S Ct 2791; 120 L

Ed 2d 674, 697-698 (1992), and the expansion on those

principles that follow, the task of the judiciary is to strike

a balance between the respect for the liberty of the

individual and the demands of organized society. Such

balance should be struck with due respect to history and

rationally evolving tradition. Thus, in the present context,

the process of rational evolution must focus on a

determination whether the question of assisted suicide can

be left to the political process without intrusion on a

protected liberty interest, eschewing either a radical

departure from tradition or the moral code of individual

judges. I agree that it can.

I do not agree with the lead opinion’s redefinition of

the statutory offense of murder to exclude participation in

‘Const 1963, art 4, § 24.

*Poe v Ullman, 367 US 497, 542; 81 S Ct 1752; 6 L Ed 2d 989

(1961) (Harlan, J., dissenting from dismissal on jurisdictional grounds).

60a

‘

the events leading up to the death, including, without

limitation, providing the means and all other acts save that

of the final act precipitating death. A person who

participates in the death of another may be charged with

murder, irrespective of the consent of the deceased. Nor

do I agree with the lead opinion’s conclusion or rationale

justifying a charge of assisted suicide under the saving

clause.’ The saving clause recognizes only unprovided-for

common-law crimes; it does not authorize this Court to

create new crimes. If assisting a suicide is a common-law

crime and not murder under the common-law definition

incorporated in our murder statutes, it may be penalized as

another crime under the saving clause. The Court,

however, cannot simply exclude from the common-law

definition of murder that which is murder under our

statutes and then hold that the Legislature intended in the

saving clause to authorize the Court to say that that which

was murder at the common law is now a new crime.

Finally, I disagree with the conclusion that one who

provides the means for suicides and participates in the acts

leading up to death may not be charged with murder as

long as the final act is that of the decedent. In Stating this

conclusion, the lead opinion has parsed the definition of

participation to permit involvement that is dangerously

overinclusive. Absent standards established to distinguish

between those who are in fact terminally ill or suffering in

agony and rationally wish to die and those who are not,

there is no principled vehicle in the judicial arsenal to

protect against abuse, save the jury’s evaluation of a given

defendant’s conduct. The acts shown in the Oakland

County case establish causation as a matter of law for

purposes of bindover. Thus, the trial court erred in

quashing the information, and the decision of the Court of

*MCL 750.505; MSA 28.773.

6la

Appeals should he affirmed.

I

Criminal homicide has been a statutory offense in

Michigan since 1846. The crime is not defined by reference

to its elements but by reference to the common law.

People v Schmitt, 275 Mich 575, 577; 267 NW 741 (1936).

There is no dispute that at the time these offenses were

committed, the Legislature had shown no disposition to

depart from the common-law definition of murder as

including assisted suicide. The lead opinion today would

alter the definition of murder by changing the causation

requirement in the context of suicide to exclude from

liability for criminal homicide those who intentionally

participate in the events that directly cause death with the

intention that death occur.

However, the intended results of the plaintiff's acts

were the results actually obtained, and the acts were both

the cause in fact and the proximate or foreseeable cause of

the decedents’ deaths. The lead opinion would thus

redefine murder as it is defined in our statutes and has

created a special causation standard, unknown in any other

jurisdiction.

The detailed account of the preliminary examination

testimony describing the assisted suicides of Ms. Miller and

Ms. Wantz, slip op at 44-47, belies the notion that the

degree of participation by the defendant in these events

was insufficient to permit a charge of murder even in those

states that have adopted separate penalties for soliciting or

assisting suicide. Testimony at the preliminary examination

presented evidence that the defendant, inter alia, inserted

IV needles into Ms. Wantz’s arm, tied strings to her fingers

so she could release chemicals into her bloodstream, and

placed a mask over Ms. Miller’s face so that she could

breath carbon monoxide gas. Jd. at 45-47. The mask was

62a

‘

secured so tightly that without intervention that fact alone

would have caused death. It cannot be said, as a matter of

law, that these actions did not establish probable cause to

believe that the defendant committed murder.

The decedents’ alleged desire in the present case that

they die with the defendant’s assistance does not absolve

the defendant of criminal liability. People v Potter, 5 Mich

1, 5 (1858). The request by the decedents does not provide

justification or excuse. E.g., State v Cobb, 229 kan 522; 625

P2d 1133 (1981); State v Fuller, 203 Neb 233; 278 NW2d

756 (1979); anno: Criminal liability for death of another as

result of accused’s attempt to kill self or assist another’s

suicide, 40 ALR4th 702, § 5, pp 709-710. The magistrate’s

decision to bind over the defendant for trial should be

upheld.

II

The lead opinion invites the circuit court on remand to

draw a distinction between acts of participation that are

merely "the events leading up to” the deaths of the

decedents and "the final overt act that causes death" that,

as a matter of law, will constitute probable cause for the

charge of murder. Such a "test" transfers the responsibility

for the outcome from the shoulders of this Court to the

trial court and effectively converts every criminal homicide

accomplished by participation into assisting suicide.

It could be argued that this solution does no more

than what the assisted suicide law does. But the assisted

suicide law is still only a temporary measure, and the

Legislature has never indicated that it would not follow the

model of other states and continue to apply the law of

criminal homicide despite the existence of statutes

specifically directed to suicide.

The lead opinion’s "solution" is in fact an invitation to

continue participation until the level of participation

63a

assumes a level of proof for bindover suggesting that the

defendant intended to kill a decedent for impure reasons.

In pragmatic terms, the force of the law is to discourage

conduct on the margins. What the lead opinion would do

in setting new margins is permit a new range of activity and

thus increase the potential for abuse of the vulnerable by

the active participant.

As the Canadian Supreme Court recently and aptly

observed in upholding a blanket prohibition against

assisted suicide:

The basis for this refusal is twofold it seems --

first, the active participation by one individual in

the death of another is intrinsically morally and

legally wrong, and secondly, there is no certainty

that abuses can be prevented by anything less than

a complete prohibition. [Rodriguez v British

Columbia, 107 DLR 4th 342; 1993 Lexis/Canada

51 (1993). ]

A

People v Roberts, 211 Mich 187; 178 NW 690 (1920),

correctly held that the homicide statute had incorporated

the common-law definition of assisted suicide as murder.

The question presented is whether we have the authority

to modify that definition and, granting that we have the

power to do so, whether we should. People v Couch, 436

Mich 414; 461 NW2d 683 (1990). The latter question

involves the issue whether the judiciary can devise an

acceptable formula advancing the autonomy of those who

deem their lives not worthy to be lived, without

jeopardizing the lives of those whose further existence

society might deem not worthy of protection. That the

Court is unable to do so is illustrated by today’s decision

that alters the law of causation in all suicide settings, not

just those of the terminally ill or acutely suffering.

64a

/

As Justice Jackson observed in a famous dissent, a

judicial decision has a force all its own. "The principle then

lies about like a loaded weapon . . . . Every repetition

imbeds that principle more deeply in our law and thinking

and expands it to new purposes." Korematsu v United

States, 323 US 214, 246; 65 S Ct 193; 89 L Ed 194 (1944).

The fact that an active participant in the death of

another risks jury determination that the circumstances are

not so compelling as to benefit from their mercy-dispensing

power tests the situation and the actions by the only

repository of authority within the judicial reach. Whether

death has been caused for good, bad, or mixed reasons, or

whether the person is in fact presently incurable or

suffering intolerable and unmanageable pain, and has a

fixed and rational desire to die, are issues that should be

addressed by a jury or the Legislature, not by this Court as

a matter of law.

Today the Court purports to approve only a mild

deviation from the common law by moving the line of

protection the murder statute affords from participation to

pulling the trigger. But the law that condemns such killings

as murder has a substantially greater deterrent effect,

imposing a substantially greater responsibility on those who

would violate it than the penalty for assisted suicide.

While the Court’s redefinition of causation is

presumably correctable, the lead opinion would reduce the

deterrent potential without any assurance that the line it

draws will not marginally increase the risk of death for

those who would have a reason to live had society and the

participant in their demise valued their continued

existence.

The lead opinion recognizes that the state’s interest in

guarding against potential abuses does not require it to

stand neutral. The state’s interest in protecting the lives of

65a

those who wish to live under any circumstances also

justifies the most severe sanction for those who would

cause such deaths. The lead opinion nonetheless sends the

message that it assesses the quality of particular human life

and judges as a matter of law that it is less culpable to

destroy some lives than others.‘ In a society that draws a

line that dictates that it is better that many go free than

that one innocent person should be convicted, something

approaching the principles protecting against error that are

extended to the criminally accused should be extended to

the victims of those who are willing to participate in suicide

and to cause death, as long as they do not pull the final

trigger. Kamisar, Some non-religious views against proposed

"mercy-killing” legislation, 42 Minn L R 969, 1041 (1958).

The lead opinion’s distrust of the jury and its dislike

for the severity of the punishment imposed by the law of

criminal homicide has caused it to draw a line that crosses

a dangerous threshold. The risk of irreversible mistake,

however "minimal," should not be borne by those no longer

able to protest-it should rest on those who assume the

authority and wisdom to extinguish human life.

B

To the extent that this Court reduces culpability for

those who actively participate in acts that produce death,

we do so at the risk of the most vulnerable members of our

society-the elderly, the ill, the chronically depressed, those

suffering from a panoply of stressful situations:

adolescence, loss of employment, the death of a child or

spouse, divorce, alcoholism, the abuse of other

‘The line drawn today is a far less merciful one than recognizing

that there is much that could and should be done for those who are

truly suffering, or who, for a variety of reasons, have come to see

themselves as irrelevant in this brave new world.

66a

é

mind-altering substances, and the burden of social

stigmatization.

The lead opinion’s solution assumes the actor is a

sufficient buffer between the patient and the family, that

the actor knows enough about the disease to assure its

terminal course and enough about the sanity of the

deceased to evaluate the rationality of suicide. The lead

opinion thus ignores the distinction between a voluntary act

carried out if the victim is sane, and the inquiry into

whether the victim’s mental state is compromised by

disease, depression, or medication.

C

The Model Penal Code recognizes the inherent

difficulty of objective management of an assisted suicide

law to separate proper from improper motivations of a

participant. The code classifies purposely causing, that is,

engaging in conduct "but for which the result in question

would not have occurred," Model Penal Code, § 210.5,

comment 4, p 98, suicide by force, duress, or deception as

criminal homicide. Aiding or assisting another to commit

suicide is a felony at the level of manslaughter if the

defendant’s conduct causes, that is, was a "significantly

contributing factor" to a suicide or attempted suicide. Jd.,

comment 5, p 103. The same distinctions are drawn in

Statutory schemes. States that have enacted assisted suicide

Statutes continue to permit prosecutions for criminal

homicides out of recognition that underinclusive line

drawing by the judiciary may, as here, permit dangerously

overinclusive activity.

In fact, as the excerpts from the cases cited by the lead

opinion indicate, it has not aligned itself with other states.

Thus, in People v Cleaves, 229 Cal App 3d 367, 375; 280

Cal Rptr 146 (1991), the court found that a defendant who

held the decedent’s back so the decedent could strangle

67a

himself was not merely a passive participant in a suicide,

stating that the murder statute applies "where a person

actively assists in performing the overt act resulting in

death ...." Likewise, State v Sexson, 117 NM 113; 869

P2d 301 (NM App, 1994), does not support the lead

opinion’s revisionist view of causation. In Sexson, the court

found that defendant could be charged with murder on

evidence that he merely held a gun in place because "[t]hat

action transcends merely providing the Victim a means to

kill herself and becomes active participation in the death

of another." Jd., 869 P2d 305.

The factual setting and issue decided in In re Joseph

G , 34 Cal 3d 429; 194 Cal Rptr 163; 667 P2d 1176; 40

ALR4th 690 (1983), are markedly dissimilar from those in

the present case. Unlike defendant Kevorkian, who was not

a party to any similar agreement, but rather an aider in

accomplishing the deaths of two other persons, the

defendant in Joseph G was a participant in a mutual

suicide pact, intending at the time of his actions to kill

both himself and his partner.’

In finding that a defendant who simultaneously

undertook completion of the agreed to suicides with his

deceased partner by a single instrumentality could only be

found guilty of assisting suicide, and not murder, the

California court "decline[d] to ritualistically apply the

active/passive distinction" between murder and suicide

assistance employed by earlier precedent to the unique

facts before it. Id. at 440.

The Joseph G court did analyze precedent regarding

*In addition, the court in Joseph _G was concerned with the

interpretation of a statutory proscription against assisting suicide,

rather than the propriety of charging common-law murder as is present

in the instant case.

68a

‘

the distinction between murder and the statutory crime of

assisting suicide, but did not hold, as the lead opinion

suggests, that a charge of murder against a suicide assistor

is unavailable unless the assistor participated in the final

overt act. Instead, the court concluded that "the key to

distinguishing between the crimes of murder and of

assisting suicide is the active or passive role of the

defendant in the suicide. If the defendant merely furnishes

the means, he is guilty of aiding a suicide; if he actively

participates in the death of the suicide victim, he is guilty

of murder." id. at 436. The court made no clear distinction

between where such passive assistance ends and active

participation begins.°

Although these distinctions are irrelevant in this

context because we did not have an assisted suicide statute

at the time of the deaths of Ms. Wantz and Ms. Miller, the

referenced discussion establishes that, in these states,

participation in the overt acts causing death is chargeable

as murder. Thus, the cases cited do not support the lead

opinion’s conclusion that if the defendant did not

participate "in the act that . . . directly cause[s] death," slip

op at 57, n 69, he cannot be bound over on a charge of

*We do not reach the question whether People v Roberts, supra,

should be reconsidered insofar as it might apply to one who is absent

when the means furnished is consumed by the deceased. Roberts is

factually dissimilar from the instant cases. The question whether the

acts in this case constituted a common-law crime not incorporated by

our criminal statutes is likewise not before us. We note, however, that

the Court in Roberts did not find it necessary to determine if suicide

was a crime (although unpunishable) in Michigan. The Court’s

exclusive reliance on Blackburn v State, 23 Ohio 146 (1872), may have

obscured the fact that, unlike the Michigan statutory scheme, the Ohio

statutes did not contain a saving clause. See State v Carney, 69 NJL

478, 480; 55 A 44 (1903). The Roberts definition of murder correctly

States the common law embodied in our homicide statutes.

69a

murder’. Sexson did not pull the trigger, he held up the

gun, and Cleaves did not strangle the decedent, he assisted

the decedent in completing the act. Likewise, defendant

Kevorkian did not pull the trigger for Ms. Miller, but he

assisted Ms. Miller in completing the act. In Ms. Wantz’s

case, his involvement was even more direct. Defendant

inserted the needle and Ms. Wantz sedated herself. When

her hand dropped involuntarily, the trigger was pulled and

the needle inserted by defendant was activated carrying

potassium chloride in sufficient quantities to cause death.

Ill

Finally, the lead opinion finds that one who has only

participated in a suicide but has not done the final act

causing death may be prosecuted under the saving clause.

MCL 750.505; MSA 28.773. The statute is applicable only

when two conditions obtain: the conduct is not otherwise

punishable by statute and the conduct was indictable at

common law. However, at common law, one who does the

deed, even through an innocent agent, is a principle in the

first degree. Perkins & Boyce, Criminal Law (3d ed), p

737. If suicide is not criminal,® the lead opinion has

attempted by judicial fiat to create a new crime of assisting

suicide. Culpability for persons assisting in suicide at

’The lead opinion is willing, slip op, p 58, n 70, to recognize that

one who negligently furnishes the means by which another commits

suicide could be found guilty of manslaughter. Thus, one who is only

criminally careless and does not participate at all may be found guilty

of a fifteen-year felony, while one who is present and participates in

the events leading up to the act that directly caused death with the

intent to cause death can only be charged with assisted suicide,

punishable by a maximum penalty of five years. Moreover, since an act

of suicide is innocent, it would follow that one who attempts and fails

but kills others in the process may not be charged with any offense.

SSlip op at 58, n 71.

70a

common law was based on participation as parties to the

crime of suicide.° The saving clause furnishes no basis for

the Court’s creation of a new crime. The usurpation of

legislative authority in the lead opinion’s approach is

evident if one considers the reach of its rationale. The lead

opinion suggests an ability to exclude certain factual

settings from the reach of the homicide statutes and then,

as it were, find legislative authorization of a free-standing

authority to recognize newly evolving crimes punishable

under the saving clause. If such conduct were permissible,

the Court could simply reorder the punishment for any

felony by concluding that conduct falls outside a given

statute but within the saving clause. Contrary to the lead

opinion’s conclusion, the saving clause is not a delegation

of legislative authority to this Court to create new crimes.

The Legislature intended to save only what had not

otherwise been covered in 1846.

Conclusion

The lead opinion would hold that where one "only"

plans and participates in a death the actor can claim was

"suicide," he may not be charged as a matter of law with

criminal homicide. No jurisdiction in the history of this

country has so held and for obvious reasons. We have no

way of assuring that redefining the line that constitutes

causation will distinguish between terminally ill or

desperately suffering people and those who think they are,

no way of deciding in advance that the act of suicide is that

of a rational person who chose death with dignity or that

of a severely depressed person who would not have chosen

death had help been available. Most significantly, the lead

opinion’s unwillingness to allow a jury to dispense mercy by

*See, generally, id. at 735-751 (describing the common-law

distinctions between principals and accessories), pp 756-757, (applying

the distinctions in suicide cases).

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determining the degree of culpability for a result clearly

intended and caused in fact by a defendant is a sea change

in the fundamental value we have assigned to the

preservation of human life as one of the last great faiths

that unites us.

The question whether the definition of murder should

be changed so as to exclude one who participates in all

events leading up to the death, save for the final act, is a

matter of compelling public interest, demanding a

balancing of legitimate interests that this Court is

institutionally unsuited to perform. Although the

Legislature passed a temporary assisted suicide law that

included participation, it has not indicated that it intends

to redefine murder, and every jurisdiction that has adopted

a specific law covering assisted suicide has permitted

prosecution for murder where the participation goes "too

far." No issue is more deserving of continued legislative

debate and public study regarding whether, when, and how

persons can maximize personal autonomy without running

the risk of creating a societal quicksand for irreversible

error.

The decision to stay our hand in this matter is not

simply a matter of adhering to the rule of law.”” It

reflects the wisdom in recognizing that if we choose not to

intervene, we have left the pressure for change in this

rapidly developing and exceedingly complex field in the

forum where it is best addressed. To choose to intervene

is to remove the pressure to decide that assisting suicide

can be found by a jury to be murder, and to add the

Court’s imprimatur to the voices of those who argue for an

Const 1963, art 3, § 7. "The common law and the statute law

now in force, not repugnant to this constitution, shall remain in force

until they expire by their own limitations, or are changed, amended or

repealed.”

72a

expansive right to self-determination that would

decriminalize assisted suicide.

As Professor Tribe observed in the context of

constitutional principles regarding these issues:

[T]he judiciary’s silence regarding such

constitutional principles probably reflects a

concern that, once recognized, rights to die might

be uncontainable and might prove susceptible to

grave abuse, more than it suggests that courts

cannot be persuaded that self-determination and

personhood may include a right to dictate the

circumstances under which life is to be ended. In

any event, whatever the reason for the absence in

the courts of expansive notions about self--

determination, the resulting deference to

legislatures may prove wise in light of the complex

character of the rights at stake and the significant

potential that, without careful statutory guidelines

and gradually evolved procedural controls,

legalizing euthanasia, rather than respecting

people, may endanger personhood. [Tribe,

American Constitutional Law (2d ed), pp

1370-1371.]

The profound questions that must be debated and the

regulatory decisions that must be made are uniquely suited

for legislative resolution. There is no principled method by

which the Court can amend the common-law definition of

murder, included in the statutes of this state. People v

Utter, 217 Mich 74, 86; 185 NW 830 (1921).

[I]t is proper, in fact the oath we took requires

nothing less, to rely on the Legislature to devise,

should it choose to do so, a means to avoid the

harsh penalty that is imposed when assisting a

suicide is treated as murder pursuant to a literal

73a

application of MCL 750.316; MSA 28.548. [People

v Kevorkian No 1, 205 Mich App 180, 191; 517

NW2d 293 (1994). ]

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

I agree with the lead opinion that § 7 of 1993 PA 3,'

enacting that a person, who provide the "physical means"

or "participates in a physical act” by which another person

attempts or commits suicide, is guilty of criminal assistance

to suicide,” does not violate the Title-Object Clause of the

"MCL 752.1021 et seq.; MSA 28.547(121) et seq.

711) A person who has knowledge that another person intends to

commit or attempt to commit suicide and who intentionally does either

of the following is guilty of criminal assistance to suicide, a felony

punishable by imprisonment for not more than 4 years or by a fine of

not more than $2,000.00, or both:

(a) Provides the physical means by which the other

person attempts or commits suicide.

(b) Participates in a physical act by which the other

person attempts or commits suicide.

(2) Subsection (1) shall not apply to withholding or

withdrawing medical treatment.

(3) Subsection (1) does not apply to prescribing,

dispensing, or administering medicationsor procedures if the

intent is to relieve pain or discomfort and not to cause

death, even if the medication or procedure may hasten or

increase the risk of death.

(4) This section shall take effect February 25, 1993.

(5) This section is repealed effective 6 months after the

date the commission makes its recommendations to the

legislature pursuant to section 4 [MCL 752 1027: MSA

28.547(127).}

Michigan Constitution.’

I further agree with the lead opinion that the

common-law offense of murder should be redefined to

preclude conviction for murder on evidence that the

accused was merely involved in the events leading up to

the death, such as providing the means, and that in such a

case the proper charge is assisted suicide under the saving

clause of the Penal Code providing that it is a five-year

felony to commit a common-law offense for which no

provision is made by statute.‘

I also agree that § 7 of act 3 does not violate the Due

Process Clause of the Fourteenth Amendment of the

United States Constitution’ insofar as it bars assisting

suicide by a physically healthy but mentally disturbed or

*The Michigan Constitution provides:

No law shall embrace more than one object, which shall

be expressed in its title. No bill shall be altered or amended

on its passage through either house so as to change its

original purpose as determined by its total content and not

alone by its title. [Const 1963, art 4, § 24.]

* Any person who shall commit any indictable

offense at the common law, for the punishment of which no

provision is expressly made by any statute of this state, shall

be guilty of a felony, punishable by imprisonment in the state

prison not more than 5 years or by a fine of not more than

$10,000.00, or both in the discretion of the court. [MCL

750.505; MSA 28.773.]

“The Fourteenth Amendment provides in part:

[NJor shall any State deprive any person of life, liberty,

Or property, without due process of law....

75a

incompetent person.°

I would hold, however, that § 7 of act 3 violates the

Due Process Clause insofar as it bars a competent,

terminally ill person facing imminent, agonizing death from

obtaining medical assistance to commit suicide.

I would accordingly direct, in the three criminal cases

(numbers 99591, 99674, and 99759), that if the circuit court

determines on remand that the evidence produced at the

preliminary examinations shows that the persons who

committed suicide were competent, terminally ill, facing an

imminent, agonizing death, the motion to quash should be

granted with regard to assisted suicide as well as murder,

and, if the preliminary examination records are inadequate

for that purpose, the matters should be remanded by the

circuit court for a further preliminary examination to

determine whether the persons who committed suicide

were competent, terminally iil, and facing an imminent,

agonizing death.

I

1993 PA 3 does not violate the Title-Object Clause of

the Michigan Constitution because

°The memorandum opinion states:

2) The United States Constitution does not prohibit a

state from imposing criminal penalties on one who assists

another in committing suicide. (Cavanagh, C_J., and Brickley,

Boyle, Riley, and Griffin, JJ.)

I join in that statement insofar as such penalties are imposed on

one who assists a physically healthy but mentally disturbed or

incompetent person to commit suicide, but do not join insofar as such

penalties are imposed for providing medical assistance to commit

suicide to a competent, terminally ill person facing an imminent

agonizing death.

76a

@ Act 3 embraces but one object, namely, issues

related to death and dying, including assistance of

suicide, and

@ Act 3, in contrast with 1992 PA 270, was not

altered or amended on its passage through either

house.

II

Dr. Kevorkian is not a murderer. The evidence in the

instant People v Kevorkian cases, in contrast with the

record in People v Roberts, 211 Mich 187; 178 NW 690

(1920), which depended substantially on the possibly

self-serving testimony of the defendant, who had pleaded

guilty, establishes that Dr. Kevorkian did no more than

provide the physical means by which the decedents took

their own lives. That evidence establishes no more than

criminal assistance of suicide or a common-law assisted

suicide offense for which no provision is made by statute.’

I agree with the lead opinion that Roberts should be

overruled insofar as it can be read as holding that a person

who does no more than assist another in committing

suicide has acted with the requisite malice to establish that

element of the crime of murder.®

Because the evidence adduced in the murder

prosecutions showed no more than criminal assistance to

suicide or such a common-law assisted suicide offense, I

see no need for a remand to determine whether Dr.

Kevorkian should be bound over on a charge of murder. I

"See n 5 and accompanying text, and the lead opinion, slip op, p

58.

SA person who purposely causes another to commit suicide by

force, duress or deception may be prosecuted for murder. See ALA,

Model Penal Code, § 210.5(1) pp 91 et seq.

Tla

join in part VI of the lead opinion to join in overruling

Roberts to the extent that it can be read to support the

view that the common-law definition of murder

encompasses intentionally providing the means by which a

person commits suicide.”

Ill

The Attorney General and the prosecutors contend

that in no circumstance does a person have a liberty

interest under the Due Process Clause in obtaining medical

assistance to commit suicide. Dr. Kevorkian contends that

any terminally ill person has such a liberty interest. I do

not agree with either of those absolute positions.

I have signed the opinion of a colleague” that would

recognize a fright in some_ circumstances to

physician-assisted suicide because I agree with him that a

person who is terminally ill may have a liberty interest in

obtaining a physician’s assistance to commit suicide, and

that § 7 of act 3 may be violative of the Due Process

Clause as applied to a particular terminally ill person.

Absent legislation providing a means, with legislatively

prescribed safeguards, by which a terminally ill person may

obtain such medical assistance, I would hold that a

terminally ill person may apply to the circuit court for an

order declaring entitlement to seek medical assistance, and

that § 7 of act 3 is violative of the Due Process Clause as

applied to that person.

*Slip op, p 57.

See opinion of Mallett, J., concurring in part and dissenting in

part.

78a

The developing law'' concerning the withholding of

medical treatment’ would assist a circuit judge in

deciding whether it is appropriate under all the

circumstances to conclude that the person is entitled to

seek medical assistance to commit suicide. Such a case

Should, of course, be expedited, and preliminary phases of

such litigation could precede the time when the terminally

ill person actually faces imminent, agonizing death.

The record in Hobbins v Attorney General does not

establish that the persons alleging terminal illness in that

litigation have now reached the threshold where it would

be appropriate to conclude that they are entitled to seek

medical assistance to commit suicide, nor do they claim

that they have an immediate desire to do so. They should

be allowed to commence an action at any time to establish

a record so that if and when they approach the threshold

where it is appropriate to conclude that they are entitled

to medical assistance to commit suicide, the preliminary

phases of such litigation will have been concluded and the

circuit court can, on a proper showing, expeditiously enter

an order providing the relief that they seek so that they can

die, if they choose, less conclusively, less painfully, and with

as much dignity as may be possible.

IV

I turn to the meritorious question, whether § 7 of act

3 violates the Due Process Clause.

The lead opinion states that "the threshold question in

“Guidelines for State Court Decision Making In Life-Sustaining

Medical Treatment, National Center for State Courts (2d ed) (1992).

"See subsection 2 of § 7 of act 3, n 2 supra, which provides that

subsection 1 of § 7 of act 3 "shall not apply to withholding or

withdrawing medical treatment."

79a

ox ine —

this case is whether the [Due Process Cjlause encompasses

a fundamental right to commit suicide and, if so, whether

it includes a right to assistance."”

By framing the question in this manner, the lead

opinion foreordains the answer.

There is a long history of laws prohibiting suicide. The

state has the power, indeed the obligation, to protect life.

But laws prohibiting suicide and assisted suicide evolved to

address situations different from those here at issue. Those

laws assume that persons seeking to terminate their lives

are emotionally disturbed or mentally ill. This is so in the

vast majority of cases.

The real issue is not whether the state can generally

prohibit suicide. The real issue is whether the state may

deny a competent, terminally ill person, facing imminent,

agonizing death, medical assistance to commit suicide.

I agree with the lead opinion that assisted suicide can

be distinguished from other conduct protected by the Due

Process Clause, such as abortion and the withdrawal of

life-sustaining medical treatment. The absence of

controlling precedent precisely addressing the issue does

Slip op, p 22.

The lead opinion similarly states:

All of the theories, of course, assume a fundamental

liberty interest in suicide itself. [Slip op, pp 27-28.]

The lead opinion reasons in an accompanying footnote:

An attempt to find a liberty interest in assisted suicide

independent of a liberty interest in suicide itself cannot

succeed. If the Due Process Clause does not encompass a

fundamental right to end one’s life, it cannot encompass a

right to assistance in ending one’s life. [Slip op, p 28, n 35.]

See also second paragraph of n 47 on page 37.

80a

not, however, end the inquiry, as the lead opinion

presupposes when it states, "[w]e disagree . . . that either

Cruzan or Casey preordains that the Supreme Court would

find that any persons, including the terminally ill, have a

liberty interest in suicide that is protected by the

Fourteenth Amendment."* (Emphasis added.)

If the issue were preordained, these cases would not be

so troubling. The real issue facing the Court is not whether

suicide or assisting suicide can be proscribed by law, but

whether the Due Process Clause bars a state from

depriving a competent, terminally ill person, facing

imminent death, and increasing agony, from obtaining

medical assistance to avoid suffering such a bitter end of

life.

The lead opinion distinguishes at length the instant

cases from Cruzan v Director, Missouri Dep’t of Health,

497 US 261; 110 S Ct 2841; 111 L Ed 2d 224 (1990), and

Planned Parenthood of Southeastern Pennsylvania v Casey,

___ US __; 112 S Ct 2791; 120 L Ed 2d 674 (1992), and

stresses the obvious: there is a long history of laws

outlawing suicide.

Abortion and withdrawal of life-sustaining measures

are indeed different from assisted suicide. Nevertheless, a

reasoned application of the principles stated in Casey and

Cruzan persuades me that state law restrictions on a

person’s ability to end his life implicates the interest in

personal liberty. Whether a competent, terminally ill

person has a right to medical assistance to commit suicide

cannot be decided without balancing the state’s interest

against the person’s interest. I conclude that the United

States Supreme Court, as presently composed, if

constrained to decide the question, would hold that the

Slip op, p 30.

8la

person’s interest outweighs the state’s interest when the

person is competent, terminally ill and facing an imminent

and agonizing death.

I thus so conclude, not from any explicit command of

precedent, but by applying the approach suggested by the

United States Supreme Court in Casey, "reasoned

judgment"’ to the imperfect analogies of Casey and

Cruzan.”°

V

The lead opinion dismisses Casey, arguing that it was

decided on the basis of stare decisis, rather than the merits,

and that abortion is sui generis. Casey, however, reaffirmed

the doctrinal support for earlier abortion rights decisions

of the United States Supreme Court, stating:

[T]he reservations any of us may have in

reaffirming the central holding of Roe are

outweighed by the explication of individual liberty we

ss Casey, supra, 112 S Ct 2806, opinion of O’Connor, Kennedy, and

Souter.

16Tn Cruzan, the Court said:

Petitioners insist that under the general holdings of our

cases, the forced administration of life-sustaining medical

treatment, and even of artificially delivered food and water

essential to life, would implicate a competent person’s liberty

interest. Although we think the logic of the cases discussed

above would embrace such a liberty interest, the dramatic

consequences involved in refusal of such treatment would

inform the inquiry as to whether the deprivation of that

interest is constitutionally permissible. But for purposes of

this case, we assume that the United States Constitution

would grant a competent person a constitutionally protected

right to refuse lifesaving hydration and nutrition. [497 US

279.}

82a

have given combined with the force of stare

decisis." [Id., 112 S Ct 2808 (emphasis added). }

The Casey plurality clarified the analytic method for

deciding substantive due process issues, and said:

The inescapable fact is that adjudication of

substantive due process claims may call upon the

Court in interpreting the Constitution to exercise

that same capacity which by tradition courts always

have exercised: reasoned judgment. Its boundaries

are not susceptible of expression as a simple rule.

That does not mean we are free to invalidate state

policy choices with which we disagree; yet neither

does it permit us to shrink from the duties of our

office. [Jd., 112 S Ct 2806 (opinion of O’Connor,

Kennedy, and Souter, JJ).] (Emphasis added.)

Although the lead opinion would limit the inquiry

solely to historical practices and precedent, Casey calls on

us to engage in a more thoughtful, less formulaic

approach.”

The Casey plurality reaffirmed the following view of the Due

Process Clause:

"Due process has not been reduced to any formula; its

content cannot be determined by reference to any code. The

best that can be said is that through the course of this

Court’s decisions it has represented the balance which our

Nation, built upon postulates of respect for the liberty of the

individual, has struck between that liberty and the demands

of organized society. . . . The balance of which I speak is the

balance struck by this country, having regard to what history

teaches are the traditions from which it developed as well as

the traditions from which it broke. That tradition is a living

thing. n [Id., 112 S Ct 2806 (quoting Poe v Ullman, 367 US

497, 542; 81 S Ct 1752; 6 L Ed 2d 989 (1961) (Harlan, J.

dissenting from dismissal on jurisdictional grounds).]

83a

VI

Another line of cases, beginning with In re Quinlan, 70

NJ 10; 355 A2d 647 (1976), and, more recently Cruzan,

supra, addresses the question whether life-sustaining

medical treatment may be withdrawn from an incompetent

person. Cruzan said that recognition of a right to refuse

life-sustaining support was implicit in the Court’s earlier

decisions construing the Due Process Clause. The Court on

that basis assumed that "the United States Constitution

would grant a competent person a _ constitutionally

protected right to refuse lifesaving hydration and nutrition."

Id. at 279."

The Court said that competing interests were involved,

especially where, as in Cruzan,” the life of an

incompetent person was involved.” The Court ruled in

conclusion that a Missouri statute requiring that there be

clear and convincing evidence of the incompetent person’s

intent before authorizing the withdrawal of life-sustaining

treatment struck a constitutionally permissible balance

between the competing interests.”

The lead opinion contends that withdrawal of life

support can be distinguished from assisted suicide. I

generally agree.

'SAs the lead opinion observes, the United States Supreme Court

premised this right on the right to refuse medical treatment. Slip op,

p 24, n 29. This right was derived as a corollary to the common-law

notion of informed consent. Cruzan, supra at 269-272. In addition,

this right was framed in terms of a protected "liberty" interest, rather

than under the right to privacy. Jd. at 279, n 7.

9 and in Quinlan.

207d. at 280-281.

lid. at 283.

‘

A rule allowing a person to have his respirator

disconnected, but to take no other steps to end his life,

condemns him to choke to death on his own sputuia.

Similarly, if the law bars a person who can only take

nourishment through a feeding tube from taking steps in

addition to ordering the tube removed to end his life, he

is required to suffer death by starvation and dehydration.

Barring such persons from taking other steps to end their

lives would, I think, constitute an undue burden on the

right implicitly recognized in Cruzan.” Cruzan should not

be read as limiting a person to a half step when that would

result in greater suffering.

The legitimate concerns about involuntary euthanasia

apply with at least as much force to the withdrawal of life

support where the person is incompetent, yet the United

States Supreme Court in Cruzan held that a state statute

permitting the withdrawal of life support on proof of the

incompetent’s wishes by clear and convincing evidence was

consistent with due process.

Vil

The Casey plurality resolved the conflict between the

state’s interest in the life of the fetus and the woman’s

interest in bodily integrity and self-determination by

drawing a line at fetal viability.~ Before viability, the

state may not place an "undue burden” on the woman’s

right to an abortion.”

2See part VII.

374., 112 S Ct 2817.

Td. 112 S Ct 2820.

The plurality stated that "[a] finding of an undue burden is a

shorthand for the conclusion that a state regulation has the purpose or

effect of placing a substantial obstacle in the path of a woman seeking

85a

In Cruzan, the Court struck a balance between the

state’s interest in life and preventing euthanasia, and the

incompetent person’s interest in being free of unwelcome

bodily intrusions. The Court found that a "clear and

convincing" evidentiary standard provided a permissible

balance of the competing interests.”

In the suicide context, legitimate state interests

generally outweigh a person’s interest in ending his life.

The vast majority of suicides are "irrational" efforts by the

depressed or mentally disturbed. Society can reasonably

assume that a person’s mental problems have clouded his

perception. Where an otherwise healthy person is

depressed or mentally disturbed, the personal liberty

interest is weak, and the state has a strong interest in

protecting the person’s interests in life.

In contrast, where the person involved is competent,

terminally ill, and facing imminent, agonizing death, the

interest of the state in preserving life is weak, and the

interest of the terminally ill person in ending suffering is

strong.

The state asserts two interests.” First, the state’s

an abortion of a nonviable fetus.” Jd., 112 S Ct 2820.

251d. at 283.

**The state and amici assert other interests, such as preserving the

integrity of the medical profession and protecting friends and family of

the suicide from emotional harm as balancing against the liberty

interest recognized here. Whether these interests weigh in favor or

against permitting a terminally ill person to end his own life depends

on the particular circumstances of a given case. It is by no means clear

that these interests would always be in opposition to the terminally ill

person’s liberty interest.

86a

general interest in preserving life.” In most situations

where a person might seek to commit suicide, the person,

even if handicapped or emotionally disturbed, has years of

life remaining for the state to protect. That possibility has

been largely foreclosed for a terminally ill person. The

choice that remains is not between life and death, but over

the terms of death.

The principal argument against assisted suicide is the

second interest asserted by the state: assuring that persons

who desire to live are not coerced into committing suicide.

While this is clearly a concern of great importance,

adequate procedures can and have been developed to

assure that a terminally ill person’s choice to end life is not

coerced.”

Restrictions on medical assistance to commit suicide

for the terminally ill should be evaluated according to the

undue burden standard enunciated in Casey.” The undue

burden standard permits the state to regulate the process

of medically assisted suicide to assure that the person truly

(a) is terminally ill, (b) is competent, (c) is suffering

agonizing pain, (d) faces imminent death, (e) desires to

commit suicide, and (f) needs or desires help to do so.

The lead opinion contends that "[n]Jo clear definition

of ‘terminal illness’ is medically or legally possible, since

"It has been said that it is questionable why such an interest is

legitimate, "completely abstracted from the interest of the person living

that life....” Cruzan, supra at 313. (Brennan, J., dissenting). But the

Cruzan majority decided that government "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... ." Jd. at 282.

See n 10.

See Casey, 112 S Ct 2820.

87a

only in hindsight is it known with certainty when someone

is going to die."”

There is to be sure difficulty in defining "terminal

illness." That does not justify avoiding the issue.”

With appropriate regulation and safeguards, the state

may account for the differences in medical opinion in

determining whether a competent, terminally ill person

faces an imminent agonizing death.

MALLETT‘, J. (concurring in part and dissenting in part)

Because the lead opinion would find that there is no

constitutional right, in any situation, to hasten one’s death

through physician-prescribed medications, I dissent. I agree

with part IV of the lead opinion that the assisted suicide

act does not violate the Title-Object Clause of the

Michigan Constitution. I also agree with part VI of the

lead opinion’s finding, modifying the common-law

definition of murder and recognizing assisting suicide as a

common-law offense, and further agree that if the required

elements of assisting suicide are presented to an examining

magistrate under the saving clause, MCL 750.505; MSA

28.773, the defendant shall be bound over for criminal

Slip op, p 28, n 34.

31 As stated in Casey:

Consistent with other constitutional norms, legislatures

may draw lines which appear arbitrary without the necessity

of offering a justification. But courts may not. We must

justify the lines we draw. And there is no line other than

viability which is more workable. To be sure, as we have

said, there may be some medical developments that affect

the precise point of viability, . . . but this is an imprecision

within tolerable limits given that the medical community and

all those who must apply its discoveries will continue to

explore the matter. [Jd., 112 S Ct 2817.]

88a

prosecution. I recognize that under part VI, the defendant

in this case may possibly be prosecuted for murder.

Confronted with the record presented to this Court, I

would find it hard to believe that an examining magistrate

could determine that the defendant here was more than

merely involved in the events leading up to the commission

of the final overt act and thus chargeable or prosecutable

for any crime other than assisting suicide. Central to the

lead opinion’s position are the statements made and the

legal conclusions reached in part V. The following pages

contain the reasons for my dissent.

There are strong arguments based on moral principles

on both sides of this issue, and this Court should be wary

of accepting arguments based solely on moral principles.

As the United States Supreme Court stated in Planned

Parenthood of Southeastern Pennsylvania v Casey, US

__, __3 112 S Ct 2791, 2806; 120 L Ed 2d 679 (1992),

"{ojur obligation is to define the liberty of all, not to

mandate our own moral code." Defining liberty, therefore,

cannot involve a morality play by any group or by a general

disapproval by the majority of this Court. The liberty to

end one’s suffering during a terminal illness exists as shown

by the decisions in Cruzan v Director, Missouri Dep’t of

Health, 497 US 261; 110 S Ct 2841; 111 L Ed 2d 224

(1990

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