# Appendix — Hobbins v. Kelley

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386012_1375%3A2

## Record

- **Collection:** Supreme Court brief
- **Document type:** Appendix
- **Published:** January 1, 1995
- **Citation:** 514 U.S. 1083

## Text

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

la

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).

Ja

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.

10a

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.

lla

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

13a

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

14a

a ein

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.

l6a

"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.}
17a

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.

19a

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 jud

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386012_1375%3A2. Public record. Not legal advice.