The "Right to Die": Constitutional and Statutory Analysis

Congressional research reportSep 19, 2005

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Order Code 97-244 A

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The "Right to Die":

Constitutional and

Statutory Analysis

Updated September 19, 2005

-name redactedLegislative Attorney

American Law Division

Congressional Research Service ˜ The Library of Congress

The "Right to Die": Constitutional and Statutory Analysis

Summary

In the spring of 2005, national attention was drawn to a series of court and

legislative actions regarding the withdrawal of nutrition and hydration from a Florida

patient, Theresa Schiavo, who had suffered severe brain damage. For a summary of

relevant factual and legal events surrounding this case, see

[http://www.miami.edu/ethics2/schiavo/timeline.htm] and CRS Report RL32830,

The Schiavo Case: Legal Issues. This case brought new scrutiny to the “right to die”

issue. Although the popular term “right to die” has been used as a label to describe

the current political debate over end-of-life decisions, the underlying issues include

a variety of legal concepts, including, suicide, passive euthanasia (allowing a person

to die by refusal or withdrawal of medical intervention), assisted suicide (providing

a person the means of committing suicide), active euthanasia (killing another), and

palliative care (providing comfort care which accelerates the death process).

Exercising one or another of these “rights to die” may have drastically different

legal consequences: some currently have no legal consequence, some are a violation

of common-law, some are a violation of statute, some may have contractual

consequences, some may result in an action such as civil confinement, some are

currently protected by legislation, and some may be protected by the United States

Constitution. This report examines the legal status of the five distinct issues: 1)

suicide, 2) passive euthanasia, 3) assisted suicide, 4) active euthanasia, and

5) palliative care.

The report examines the history of how each of these issues has been treated

and evaluates the constitutional right of a person to pursue these courses of action.

It addresses state law regarding living wills, advance medical directives, and how

these types of decisions are made regarding persons who have left neither. The report

addresses congressional powers and existing federal statutes that are implicated in

these issues, such as the Patient Self-Determination Act, the Assisted Suicide

Funding Restriction Act, and the Controlled Substances Act. It then addresses bills

introduced in the 109th Congress, S. 539 and H.R. 1151, both entitled the

“Incapacitated Persons Legal Protection Act of 2005;” a bill passed by the House,

H.R. 1332, “The Protection of Incapacitated Persons Act of 2005;” a bill passed by

the Senate, “For the Relief of the Parents of Theresa Marie Schiavo;” and a similar

bill passed by the House and Senate, S. 686. This last bill was signed by the

President and became P.L. 109-3.

The report notes that current state regulations prohibiting assisted suicide have

been upheld by the Supreme Court, and that similar prohibitions against active

euthanasia are likely to be upheld against constitutional challenge. The Due Process

Clause of the Fourteenth Amendment, however, appears to limit a state’s ability to

regulate passive euthanasia (termination of medical treatment). Finally, palliative

care may ultimately be found to be protected by the Fourteenth Amendment, but the

possible abuse of such care may raise policy concerns.

Contents

I. Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

A. Background . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

B. How Broad Is the "Right to Die"? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

C. The Constitutional Genesis: the Right to Privacy . . . . . . . . . . . . . . . . . . 5

II. Five Types of "Right to Die" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

A. Suicide . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

1. Historical Precedent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

2. State Legislation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

3. Constitutional Status . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

B. Passive Euthanasia: Refusal or Termination of Medical Treatment . . . 10

1. Historical Precedent: Common Law Battery . . . . . . . . . . . . . . . . . 10

2. State Legislation: Treatment Directives . . . . . . . . . . . . . . . . . . . . . 10

3. Constitutional Status . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

4. Implications of Cruzan . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

5. The Schiavo case . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

C. Assisted Suicide . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

1. Historical Precedent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

2. State Legislation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

3. Constitutional Status . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

D. Active Euthanasia . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26

E. Palliative Care . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27

III. Who Decides: Individuals, Guardians, and the Court . . . . . . . . . . . . . . . . . 28

A. The Subjective Intent Test . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29

B. The Objective Test . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30

C. The Never-Competent Patient . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32

IV. The Federal Role . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32

A. Congressional Authority . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32

1. Congress’ Authority Under 14th Amendment, § 5 . . . . . . . . . . . . . . 33

2. The Commerce Clause . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41

B. Existing Federal Legislation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46

1. The Patient Self-Determination Act . . . . . . . . . . . . . . . . . . . . . . . . 46

2. Assisted Suicide Funding Restriction Act . . . . . . . . . . . . . . . . . . . 46

3. The Controlled Substances Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46

4. “For the Relief of the Parents of Theresa Schiavo” . . . . . . . . . . . . 49

C. Proposed Legislation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54

1. “Incapacitated Persons Legal Protection Act of 2005” . . . . . . . . . . 54

2.“Protection of Incapacitated Persons Act of 2005” . . . . . . . . . . . . . . 57

D. Congressional Subpoenas and Congressional Requests . . . . . . . . . . . . . 60

The "Right to Die": Constitutional and

Statutory Analysis

I. Introduction

A. Background

In the spring of 2005, national attention was drawn to a series of court and

legislative actions regarding the withdrawal of nutrition and hydration from a Florida

patient, Theresa Schiavo, who had suffered severe brain damage. The treatment of this

patient brought new attention to the “right to die” issue. Although the issue of “right

to die” has many common themes, the individual aspects of each case may have a

significant affect on the outcome of any proceeding. While a detailed examination of

the Schiavo case is beyond the scope of this report, the case is briefly addressed under

the topic of “passive euthanasia.”

One of the greatest scientific achievements of this century has been the

development of medical technology to cure disease and to prolong lives. Before 1900,

most deaths in this country were the result of communicable diseases, such as

influenza or pneumonia, which could kill people of all ages.1 Today, in contrast,

deaths due to these illnesses have decreased dramatically, and most people succumb

to chronic degenerative diseases related to age such as heart disease, cancer and

cerebrovascular disease.2

These advances, however, do not come without burdens. Chronic degenerative

diseases tend to be manifested years before death occurs, and because some medical

intervention often exists, persons with these conditions tend to die more slowly and

often painfully.3 The advent of AIDS has also resulted in an increase in the number

of deaths which occur after extended periods of pain and physical disability.

Consequently, patients are increasingly being confronted with decisions regarding

whether to pursue or decline aggressive medical treatment. Further, there are

indications that some patients are making decisions which affirmatively hasten their

G. Steven Needley, Chaos in the “Laboratory of the States”: The Mounting Urgency in

the Call for Judicial Recognition of a Constitutional Right to a Self-Directed Death, 26 U.

TOL. L. REV. 81, 85 (1994).

Washington v. Glucksberg, 521 U.S. 702, 716 (1997) (citation omitted).

One in every two Americans dies of a disease diagnosed at least 29 months in advance. G.

Steven Needley, supra note 1, at 86.

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deaths, whether through increasing levels of pain control medications or by other

means.4

The increase in the number of end-of-life decisions has coincided with the

expansion of patients’ rights and involvement in medical decision-making. Yet the

legal community has not yet come to terms with the implications resulting from this

increased patient autonomy. State legislatures have made only piecemeal attempts to

confront end-of-life decisions, federal involvement has been minimal, and the courts

which have attempted to resolve some of these legal issues are faced with little

precedent, inapplicable legislation, murky constitutional theory, and clashing legal

doctrines. Prompt resolution of these issues is frustrated by a lack of political

consensus among major societal institutions.5 For those reasons, the law in this area

may be less a reflection of a coherent legal structure than a reaction to the immediate

concerns and societal pressures surrounding specific cases.

For example, a majority of patients with terminal illnesses or their guardians will

face decisions as to whether life-sustaining medical treatment should be refused or

withdrawn, allowing the individual to die.6 By design or necessity, most such

decisions are made by agreement among interested parties, such as the patient, his or

her family, attending doctors and hospital administrators.7 On occasion, however,

because of fear of legal liability, disagreement between the institutions and individuals

involved, or because of moral objections, these decisions are made only after litigation

in state, or occasionally federal, courts.

It is estimated that 6,000 terminal patients a day die as a foreseeable result of pain control

medication. Compassion in Dying v. Washington, 79 F.3d 790, 811 (9th Cir. 1994)(en

banc). A survey by the American Society of Internal Medicine indicated that one in five

doctors have participated in assisting a patient’s suicide. Id.

While our society has a long-standing moral aversion to suicide of physically healthy

persons, attitudes toward hastening death in the cases of seriously ill patients are more

complex. Despite existing laws on the books against assisted suicide or intentional killing,

there have been few prosecutions under these statutes and many doctors privately admit

helping people to die. Richard A. Know, One in Five Doctors Say They Assisted a Patient’s

Death, Survey Finds, BOSTON GLOBE, Feb. 28, 1992, at 5. For instance, in the case of Dr.

Jack Kevorkian, who admitted responsibility in assisting over forty ill persons commit

suicide (and was eventually convicted of second-degree murder), there were no successful

prosecutions for assisted suicide. Jack Lessenberry, Kevorkian is Arrested and Charged

with Suicide, NEW YORK TIMES, Nov. 8, 1996, at A19. While some argue against societal

approvals of such activities, others argue that it is better to regulate this behavior rather than

allowing it to flourish underground. Esther B. Fein, The Right to Suicide, Some Worry,

Could Evolve Into a Duty to Die, NEW YORK TIMES, April 7, 1996, at A24.

Of the approximately two million people who die in the United States every year, 80% die

in hospitals, and perhaps 70% of those die after a decision to forgo life-saving measures is

made. Cruzan v. Director, Missouri Dept. of Health, 497 U.S. 261, 302 (1990)(J. Brennan,

dissenting).

Decisions regarding the withdrawal of medical support are generally made, not by courts,

but by the individuals or institutions directly involved. Gasner, Right to Die Lives Locally,

Nat’l L.J., July 23, 1990, at 13, col. 1. Thousands of patients die every day upon withdrawal

of medical support; yet since 1976, the number of "right to die" cases number in the low

hundreds. Id. at 14.

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Further, one of the most influential legal doctrines in the area of “right to die” is

the constitutional right of privacy and of bodily integrity, the limits of which are

anything but clear. Under the so-called privacy cases, the Supreme Court has

established certain individual rights regarding the issues of marriage,8 contraception9

and abortion.10 The Court has also entered the "right to die" area, provisionally

approving of the termination of medical treatment, but setting limits at which the

state’s interest in viable life cannot be overridden.11 This decision, however, may be

seen as an outgrowth of a line of cases protecting bodily integrity. Other decisions by

the court regarding the breadth of the right to privacy, which are now generally called

“liberty interests” under the Fourteenth Amendment,12 bring the establishment of a

broader privacy based “right to die” into doubt.

For example, the Supreme Court rejected an argument that statutes prohibiting

assisted suicide violate either the Equal Protection Clause or a protected “liberty

interest” under the Due Process Clause of the Fourteenth Amendment. Two United

States Courts of Appeals had determined that severely ill patients have a right under

the Fourteenth Amendment to seek medical assistance to cause their own deaths.

Both of these cases, Quill v. Vacco13 and Compassion in Dying v. Washington,14 were

reversed by the Supreme Court. By resolving the issues in Quill and Compassion in

Dying, the Supreme Court effectively ended the likelihood that a significant expansion

of the “right to die” will arise through the courts. It did not, however, preclude such

expansion by legislatures.

B. How Broad Is the "Right to Die"?

Although the popular term “right to die” has been used as a label to describe the

current political debate over end-of-life decisions, the underlying issues include a

variety of legal concepts, some distinct and some overlapping. For instance, “right to

die” could include, at a minimum, suicide, passive euthanasia (allowing a person to

die by refusal or withdrawal of medical intervention), assisted suicide (providing a

person the means of committing suicide), active euthanasia (killing another), and

palliative care (providing comfort care which accelerates the death process). Recently,

a new category has been suggested — physician-assisted suicide — which appears to

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

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

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

Cruzan v. Missouri Dept. of Health, 497 U.S. 261 (1990).

See, e.g., Paris Adult Theatre v. Slaton, 413 U.S. 49 (1973)(obscenity cannot be displayed

even to consenting adults).

Quill v. Vacco, 80 F.3d 716 (2nd Cir. 1996), reversed, 521 U.S. 793 (1997).

Compassion in Dying v. Washington, 79 F.3d 790 (9th Cir. 1996)(en banc), reversed, 521

U.S. 702 (1997).

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be an uncertain blend of assisted suicide or active euthanasia undertaken by a licensed

physician.15

Yet, exercising one or another of these “rights to die” may have drastically

different legal consequences: some currently have no legal consequence, some are a

violation of common-law, some are a violation of statute, some may have contractual

consequences, some may result in civil action such as confinement, some are currently

protected by legislation, and some may be protected by the United States Constitution.

It should also be noted that the legal and moral status of these rights may vary

dramatically depending on the medical status of the individual patient. While early

legal discussions of the "right to die" were primarily associated with terminal illness,

more recent discussions have focused on medical situations involving high levels of

pain, futile prognosis, diminished quality of life, or even on mental suffering.16

While some advocates would find little distinction between these various

methods of terminating a person’s life,17 and would give the patient the discretion to

decide what is a sufficient basis for exercising that option, other commentators find

that maintaining distinctions between different situations is important to prevent

abuses, or to conform to professional, societal or moral concerns.18 One of the major

policy arguments made regarding the "right to die" is the concern that recognizing a

"right to die" in one circumstance will be generalized to include other circumstances

where different considerations may be relevant; in other words, there is a concern that

granting a "right to die" is the first step down a slippery slope.19

Compassion in Dying v. Washington, 79 F.3d at 844, 852 (J. Beezer, dissenting).

STAFF OF THE SUBCOMMITTEE ON THE CONSTITUTION, COMMITTEE ON THE JUDICIARY,

Physician-Assisted Suicide and Euthanasia in the Netherlands, 104th Cong., 2d Sess. at 2

(Comm. Print 1996)(discussing the development of assisted suicide in Holland).

Note, Physician-Assisted Suicide and the Right to Die with Assistance, 105 Harv. L. Rev.

2021 (1992)(noting similarities between withdrawal of medical treatment and assisted

suicide).

As Professor Yale Kamisar has said, “how you phrase the question will determine your

answer.” Yale Kamisar, Against Assisted Suicide — Even a Very Limited Form, 72 U. Det.

Mercy L. Rev. 735 (1995). For instance, the United States Court of Appeals for the Ninth

Circuit, in reviewing an assisted suicide statute, characterized the constitutional right at

stake as the “liberty interest in determining the time and manner of death.” Compassion in

Dying v. Washington, 79 F.3d at 801. As stated by the court, however, this broader “right”

would seem to encompass any of the several ways of choosing death, from termination of

medical treatment to euthanasia.

For instance, while some persons would restrict the assisted suicide debate to the

terminally ill, the distinction between the terminally ill and persons with incurable

conditions was one of the first distinctions to fall when courts considered the issue of

termination of medical treatment. See Cruzan v. Missouri, 497 U.S. 261

(1990)(constitutional rights to termination of medical treatment apply to persistently

vegetative patient); Note, supra note 17, at 2026. Thus, one commentator has suggested that

if a right to assisted suicide is established for the terminally ill, no principled distinction

could be made to prevent similar acts by persons who are handicapped, in physical pain, or

even clinically depressed. Yale Kamisar, supra note 18, at 748 (1995).

(continued...)

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C. The Constitutional Genesis: the Right to Privacy

In Glucksberg v. Washington, the Supreme Court evaluated the holding of the

United States Court of Appeals for the Ninth Circuit in Compassion in Dying v.

Washington that the Fourteenth Amendment to the Constitution protects the right of

an individual to seek and obtain physician-assisted suicide.20 In doing so, the Court

revisited a controversial area of constitutional law, the so-called right to privacy. This

relatively amorphous right was first substantively addressed in the contraceptive area,

but has subsequently been expanded to include other decisions of a personal nature.

The right of privacy sought a permanent home in the Constitution for a number

of years. First proposed in an 1890 article in the Harvard Law Review by Samuel

Warren and Louis Brandeis,21 it reappeared years later in a Supreme Court dissenting

opinion regarding the Fourth Amendment.22 However, in 1965, in the landmark case

of Griswold v. Connecticut,23 the Court established the concept of a constitutional

guarantee of privacy which “emanated” from the Bill of Rights, even if it was not

specifically identified in it. In Griswold, the Court struck down a law which prevented

the use of contraceptives. The Supreme Court ruled that the right of married couples

to make decisions regarding procreation was guaranteed by the Constitution.24 This

(...continued)

Concerns have also been raised that once a “right to die” has been legally established,

society may begin to expect those who are old, poor or sick to take advantage of this right

as a matter of duty. In this context, it is noted that many disabled people withdraw suicide

requests when given adequate care. Id. at 744. For example, in McKay v. Bergstedt, 801

P.2d 617 (Nev. 1990), a thirty-one year old competent, non-terminal quadriplegic obtained

a court order permitting the removal of his respirator, despite clear indications that his desire

to die was based on the impending death of his primary care-taker, his father, and the

presumed attendant lowering in quality of his care.

518 U.S. 1057 (1996)(cert. granted sub nom. Glucksberg v. Washington).

Warren and Brandeis, The Right of Privacy, 4 Harv. L. Rev. 193 (1890).

See Olmstead v. United States, 277 U.S. 438 (1928)(J. Brandeis, dissenting)(arguing

against the admissibility in criminal trials of secretly taped telephone conversations). In

Olmstead, Justice Brandeis noted:

The makers of our Constitution undertook to secure conditions favorable to the

pursuit of happiness . . . . They sought to protect Americans in their beliefs, their

emotions and their sensations. They conferred, as against the Government, the

right to be let alone - the most comprehensive of rights and the right most valued

by civilized men. To protect that right, every unjustifiable intrusion by the

Government upon the privacy of the individual, whatever the means employed,

must be deemed a violation of the Fourth Amendment.

277 U.S. at 473.

381 U.S. 479 (1965).

The facts of Griswold, are relatively straightforward. Griswold, the Executive Director

of Connecticut Planned Parenthood, was arrested, along with the Medical Director of the

organization, and charged as accessory to a crime. The defendants in question were accused

(continued...)

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holding was supported, however, by a variety of competing theories set forth by

different justices, which left the scope of the right to privacy in an unsettled state.25

In the case of Roe v. Wade,26 the Court expanded the theory of the Griswold case

to the issue of abortion. The opinion of the court in that case focused on the medical

and legal history of abortion, and appears to have relied to a large degree on the

medical consequence of decisions concerning pregnancy.27 The Court ultimately

concluded that the Constitution provided protection for autonomy in reproductive

decisions, and set forth a substantive structure to evaluate laws restricting abortion.28

The Court has subsequently established the Due Process Clause of the Fourteenth

Amendment as the basis for the protection of these and other “liberty interests,”

preferring to avoid the parlance of a generalized constitutional right of privacy. The

holding of Roe v. Wade was modified by the case of Casey v. Planned Parenthood of

(...continued)

of having aided and abetted the violation of a Connecticut law which prohibited the use of

any drug, medicinal article or instrument for the purpose of preventing conception. The

defendants challenged whether such a law could be constitutionally enforced by a state, and

the Supreme Court ruled that it could not, as the right of married couples to use

contraception was guaranteed by the Constitution.

Justice Douglas, in the plurality opinion, noted that the Supreme Court had previously

found that fundamental rights could be extended to establish “penumbral” rights, or rights

whose enforcement would protect the underlying right. Finding that privacy rights are

contained in the First Amendment, the Third Amendment, the Fourth Amendment, the Fifth

Amendment, and the Ninth Amendment, Justice Douglas held that the institution of

marriage was protected by these “penumbral” rights, and was thus exempt from such

regulation. 381 U.S. at 484-485. In concurrence, Justice Goldberg found the right to

privacy to be contained in the Ninth Amendment, which states that “the enumeration of

rights in the Constitution shall not be construed to deny or disparage those rights retained

by the people,” and to be applied to the states through the Fourteenth Amendment. 381 U.S.

at 499. Justice Harlan, also in concurrence, found that the contraception statute violated the

Fourteenth Amendment as it violated basic values “implicit in the concept of ordered

liberty,” 381 U.S. at 500, while Justice White also found the right in the Fourteenth

Amendment. It is these last two opinions that would eventually come to be the basis for the

modern right to privacy.

410 U.S. 113 (1973).

See 410 U.S. at 152.

The Court found that in the first trimester, the risks of abortion were less than the risk of

childbirth, and thus the mother was to be unrestricted in her ability to choose the less

medically risky route of abortion. During the second trimester, the risks to the mother

increase, thus allowing the state to intervene for purposes of regulating those aspects of an

abortion which may affect a mother’s health and safety. 410 U.S. at 163. Such factors

would include the particular qualifications of the physician performing the procedure, the

facility where the procedure should take place, and licensing requirements. Id. Finally, in

the third trimester, when the fetus may be capable of life outside of the mother’s womb, and

thus be “viable,” the state may ban abortion completely. Id.

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Southeastern Pennsylvania,29 but the central holding regarding the existence of a

liberty interest in choosing whether or not to terminate a pregnancy is unchanged.30

It is not always clear when the right to privacy is likely to be extended to

activities not previously addressed by Supreme Court decisions. If a general test can

be discerned as to when a “right of privacy” or “liberty interest” can act as a shield

against governmental action, it would appear to require that two basic questions be

considered. First, is the activity to be regulated one which is deeply rooted in the

history of the nation,31 or second, is it so central to personal autonomy that neither

liberty nor justice would exist without constitutional protection.32 In the abortion

context, however, this protection appears to be subject to an exception if there is a

“viable” life being threatened by the activity.33 When life is at risk because of a

protected activity, such as when an abortion is sought in the third trimester, concerns

about a “right of privacy” may be outweighed by the need to protect that viable life.

505 U.S. 833 (1992).

The Court in Casey upheld the provision of information to women seeking abortions, the

twenty-four hour waiting period, and the requirement that a minor obtain the consent of a

parent or judge. The Court, however, struck down the section of the law which dictates that

a woman must notify her husband of her intent to have an abortion. The Court also upheld

the medical reporting requirements on clinics and doctors performing abortions, although

a requirement that a women report why she did not notify her husband of the abortion was

struck down. The core of the plurality opinion is section IV, which upheld the right of a

woman to have an abortion, but rejected the trimester structure established by Roe v. Wade.

Under Roe, states were prevented from imposing any restrictions designed to protect

“potential life” on abortions performed in the first and second trimesters of pregnancy; only

in the third trimester could the state impose restrictions to protect “potential life.” Under

Casey, however, the Court held that laws restricting abortions to protect “potential life”

could be imposed at anytime prior to viability, if such laws did not pose an “undue burden”

on the women’s ability to have an abortion. Consequently, the Court found that certain of

the above-noted restrictions, which applied during the first and second trimesters of

pregnancy and would have been unconstitutional under Roe v. Wade and subsequent

Supreme Court cases, see City of Akron v. Akron Center for Reproductive Health, 462 U.S.

416 (1983); Thornburgh v. American College of Obstetricians and Gynecologists, 476 U.S.

747 (1986), were now constitutional on their face.

Bowers v. Hardwick, 478 U.S. 186, 192 (1986) overturned by Lawrence v. Texas, 123 S.

Ct. 2472 (2003)(finding that homosexual activity, historically forbidden by legislation, is

not a fundamental liberty implicit in the concept of ordered liberty, and is therefore not

protected by the 14th Amendment). In the case of abortion, for example, the interest of

individuals in making their own medical decisions and in making their own decisions

regarding their family are cited as strong historical reasons for leaving to the individual the

decision whether to have an early abortion. Thus, an affirmative answer to this first

question will generally serve to inhibit governmental intervention.

Id.

See supra note 28.

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II. Five Types of "Right to Die"

This section will examine the legal status of five distinct issues concerning the

“right to die:” 1) suicide, 2) passive euthanasia, 3) assisted suicide, 4) active

euthanasia, and 5) palliative care. The historical tradition surrounding these will be

examined with an eye to the Supreme Court’s preference that constitutionally

protected liberty interests be “rooted in the nation’s history and tradition.” This

section will also examine present statutory and constitutional implications of each of

these areas. It should be noted that some legal doctrines in this area are settled, while

others are still evolving.

A. Suicide

1. Historical Precedent.

From the sparse record of ancient times, we can discern that the attitudes of the

Greeks and Romans toward suicide were ambiguous.34 By the Middle Ages, however,

the influence of the Catholic Church was dominant, and the practice was condemned

as a violation of religious and civil law.35 English common law inherited this aversion

to suicide and would sometimes impose posthumous deprivation of religious

ceremony, and significant penalties were generally directed against the estate of the

person committing suicide.36 There are indications, however, that suicide in the face

of suffering was treated less harshly.37 The founding fathers of this country, on the

other hand, were uninterested in imposing punishment upon the innocent heirs to the

estates of persons committing suicide,38 and the legal tradition of punishing suicide

was generally abandoned soon after the adoption of the Constitution.39 Consequently,

in the American legal tradition, there has been little or no punishment imposed for

suicide or attempted suicide.40

In ancient times, as today, suicide was generally disfavored. Roman law generally forbade

suicide and imposed a penalty of forfeiture of property upon the estate of the decedent.

Thomas J. Marzan, Mary K. O’Dowd, Daniel Crone & Thomas Balch, Suicide: A

Constitutional Right?, 24 Duquesne Law Review 26 (1985). However, it appears that

suicide in particular circumstance was seen as either acceptable or even commendable.

Compassion in Dying v. Washington, 79 F.3d at 806-08. In particular, it appears that suicide

that was prompted by pain or sickness was generally not punishable under Roman law.

Marzan, supra, at 22-23.

Compassion in Dying v. Washington, 79 F.3d at 808.

79 F.3d at 846 (J. Beezer, dissenting).

Catherine D. Shaffer, Criminal Liability for Assisting Suicide, 86 Colum. L. Rev. 348, 349

(1986); Compassion in Dying v. Washington, 79 F.3d at 808-809.

Compassion in Dying v. Washington, 79 F.3d at 844 (J. Beezer, dissenting).

Thomas J. Marzan, supra note 34, at 64-69.

Catherine D. Shaffer, supra note 37, at 349 (1986); Compassion in Dying v. Washington,

79 F.3d at 809.

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2. State Legislation.

Although there are currently no criminal punishments associated with suicide or

attempted suicide, this does not mean that these acts are without legal consequence.

The trend of modern American law has generally been that a person who is suicidal

should not be treated as a criminal, but as mentally ill.41 Further, a person who assists

such a suicide may be prosecuted under the laws of many states.42 Thus, while suicide

is not punished per se, it is not free of significant legal consequence.43

In practice, however, the way in which a person engaged in a suicidal attempt is

treated may vary based on context. Where a suicidal attempt appears to be the result

of depression or mental problems, the state will generally intervene, and the person

will be confined until such time as their suicidal urges have subsided. On the other

hand, certain public, political acts, such as fasting, have sometimes been engaged in

without government intervention. Nor is it clear that a court is likely to intervene in

the cases of terminally ill patients who take their own lives.44

3. Constitutional Status.

Although there are no criminal penalties associated with suicide, the threat of

confinement might be seen as an infringement on one’s personal autonomy as a

consequence of making an important and fundamental life decision. Thus, it could be

argued that the right to commit suicide should be found to be a liberty interest

protected under the Fourteen Amendment. There has been little litigation of this issue

in the courts, however, and Supreme Court dicta seems to favor the notion that the

state has a constitutionally defensible interest in preserving the lives of healthy

citizens.45 However, the issue of the constitutional status of suicide of the seriously ill

has not been squarely faced.

One of the strongest conceptual problems with a constitutional right to suicide

for the seriously ill is how such a right would be limited. Suicide is often associated

with depression, and certain life events, such as a terminal illness, may trigger

depression in some individuals and not in others.46 On its face, it is not clear how a

constitutional right to act on suicidal impulses related to depression would vary among

the terminally ill, the chronically-ill, the disabled, the temporarily-impaired, or the

Compassion in Dying v. Washington, 79 F.3d at 847 (J. Beezer, dissenting).

See infra notes 86-89 and accompanying text.

For instance, many life insurance contracts include exclusions for suicide. Compassion

in Dying v. Washington, 79 F.3d at 852 (J. Beezer, dissenting).

See Campbell v. Supreme Conclave Improved Order Heptasophs, 49 A. 550 (1901)

(“sometimes self-destruction, humanly speaking, is excusable, as where a man curtails by

weeks or months the agony of an incurable disease.”).

Cruzan v. Missouri Dept. of Health, 497 U.S. 261, 280 (1990)(“We do not think that a

State is required to remain neutral in the face of an informed and voluntary decision by a

physically able adult to starve to death”).

Catherine D. Shaffer, supra note 37, at 356-357. For instance, whether or not a person

attempts suicide is often affected by the quality of relationships with others. Id. at 357.

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physically robust. Further, if the right were only extended to those individuals who

were not depressed but who were making a “rational decision” regarding an untenable

circumstance, a court would be required to engage in an evaluation of social and

psychological factors that are generally alien to the establishment of constitutional

rights.47

B. Passive Euthanasia: Refusal or Termination of Medical

Treatment

1. Historical Precedent: Common Law Battery.

Passive euthanasia, or the refusal or termination of medical treatment by a

patient, has historical roots in criminal law. Under common law doctrine, an

unauthorized touching was the basis for a charge of battery. In the medical field, this

has been applied to prevent and punish the application of medical treatment without

the full and informed consent of the individual involved or a suitable representative.48

Even when the government seeks to impose unauthorized medical treatment, the

courts have generally required that the government show compelling needs to impose

such treatment.49

2. State Legislation: Treatment Directives.

As the right to refuse medical treatment existed at common law and has, with a

few notable exceptions,50 generally been honored by the courts, decisions by

competent patients to terminate treatment do not appear to have attracted the attention

of state legislatures. However, the situation often arises that a patient with a serious

medical condition will become so ill that he cannot communicate or he is not

competent to make a medical care decision. This situation is prevalent enough that

a Model Code entitled Uniform Rights of the Terminally Ill Act was developed, and

most states have adopted some procedure by which medical treatment decisions can

be made by individuals in advance.

a. The Living Will Option.

Most states have statutes based on the Uniform Rights of the Terminally Ill51

which authorize an individual to execute a Treatment Directive directing the

Thomas J. Marzan, supra note 34, at 107.

Note, supra note 17, at 2026. See, e.g., Hershley v. Brown, 655 S.W.2d 671, 676 (Mo.

App. 1983).

See Washington v. Harper, 494 U.S. 210 (1990)(state interest in maintaining order

overrides a prisoner’s liberty interest in avoiding the forced application of anti-psychotic

drugs).

See infra note 71.

Unif. Rights of the Terminally Ill, 9B U.L.A. 609 (1989).

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withholding or withdrawal of life-sustaining procedures.52 These Treatment

Directives, referred to as “Living Wills”, are generally only applicable when the

individual, sometimes referred to as the “declarant” or “principal,” is terminally ill and

death is imminent. The required form of a “Living Will” may vary from state to state,

but a properly executed “Living Will” should be easily enforceable in the state in

which it was drafted. These “Living Will” statutes also offer significant legal

protections. For instance, those involved in termination of medical treatment are

generally immunized by statute from liability for allowing a patient to die. Further,

life insurance benefits which might be jeopardized by termination of medical

treatment are generally protected. Finally, the application of penal laws which might

prohibit suicide are generally voided by the operation of these statutes.

b. Appointment Directives.

All states provide that an individual can delegate legally binding authority to

another individual. This delegation of authority is sometimes referred to as the

delegation of the “power of attorney.” A “durable” power of attorney, which is also

provided by state statute, is drafted so as to be effective when a person is incompetent

to make decisions for himself. Some states have specifically provided that these

durable powers of attorney may be used to delegate the authority to make medical

decisions, even where such decisions may lead to the death of the individual. Thus,

using a durable power of attorney, a person can appoint another individual to make

medical decisions for him if he becomes incapacitated.53

A durable power of attorney, often set forth in an “Appointment Directive,”

offers a number of advantages over a Living Will. A person who delegates healthmaking decisions using this procedure does not have to anticipate every possible

medical situation which may arise. By utilizing a power of attorney, the medical

treatment decision can be deferred until such time as the medical situation has

occurred; in this way, the appointed decision-maker can evaluate the specific details

of the medical situation before making a decision. An Appointment Directive can also

contain directions to the appointed decision-maker describing what medical treatment

should or should not be used, as with a Living Will. The appointed decision-maker

need not be a professional attorney; rather, the appointment can be given to any

competent adult, with some exceptions, whether they be family, friend or other.

A health proxy is similar to a durable power of attorney, but is generally

contained within a Treatment Directive. As with the durable power of attorney, the

health proxy may be given specific instructions by the declarant regarding what

medical treatment should be provided, or the proxy may be given the discretion to

make these decisions. Generally, the only significant difference between a health

See Marguerite A. Chapman, The Uniform Right of the Terminally Ill Act: Too Little, Too

Late?, 42 Arkansas Law Review 319 (1989). Although many states have authorized “Living

Wills” and “durable powers of attorney,” these documents are apparently still relatively

uncommon, and the problematic court cases appear to arise most often because patients have

not prepared such wills. Id.

Gregory Gelfand, Living Will Statutes: The First Decade, 1987 Wis. L. Rev. 737, 794

(1987).

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proxy and a durable power of attorney is that a health proxy, like most Treatment

Directives, can only be exercised when a patient is terminally ill; a durable power of

attorney is usually not so limited.

3. Constitutional Status.

As noted above, the right to refuse medical treatment has been addressed by

legislation at the state level. However, even in those cases where no medical directive

has been completed, or where the state law does not cover a particular medical

circumstance, individuals or their guardians have still sought to make a medical

decision which will ultimately cause the death of the patient. In this type of situation,

implementation of a patient’s wishes might be sought under the Fourteenth

Amendment of the Constitution. This was the litigation posture which lead to the case

of Cruzan v. Missouri Department of Health.54

At the time of the litigation in Cruzan, Nancy Cruzan lay in a hospital bed55 in

what is called a persistent vegetative state.56 In Nancy’s case, there was sufficient

brain-stem activity to control unconscious activities, such as breathing and heart

functioning, and sometimes she would respond to pain or noise. Nancy apparently

went through sleep and wake cycles, but when her eyes were open they moved

randomly, and she did not seem aware of her environment. Her body was stiff, she

lay in a fetal position, and her arms and legs were permanently contracted. Medical

opinion was that she would never interact significantly with the world around her

again.57

Although Nancy was able to take nutrition through spoon-feeding following the

accident, it was determined that artificial nutrition and hydration were medically

indicated. Thus, approximately three weeks after the accident, with the permission

of both her parents and her husband, a feeding tube was surgically implanted in her

stomach. It is this medical decision which Nancy’s parents sought to reverse. With

this feeding tube in place, Nancy Cruzan could have lived up to another thirty years.

Without it, she would die, most likely through dehydration. At the time of the

litigation, Nancy Cruzan had been in a persistent vegetative state for over six years.

497 U.S. 261 (1990).

In 1983, Nancy Cruzan, 25 years old, was involved in a car accident on a deserted country

road. 497 U.S. at 266. She was found face down on a frozen ground with no signs of life.

Although an emergency team was able to restore breathing and heartbeat, Nancy Cruzan’s

brain had been oxygen-starved for too long, and she suffered severe brain damage. Id.

According to the Academy of Neurology, persistent vegetative state patients are

permanently unconscious and devoid of thought, emotion and sensation. The state is

described as a form of eyes-open permanent unconsciousness in which the patient has

periods of wakefulness and physiological sleep/wake cycles. Amicus Brief for Academy of

Neurology at 3, Cruzan v. Director, Missouri Department of Health, 497 U.S. 261

(1989)(No. 88-1503). It was estimated that 10,000 patients were being maintained in a

persistent vegetative state in the United States. Id.

497 U.S. at 267.

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Although the State of Missouri has a “Living Will” statute,58 it was not in effect

at the time of Nancy’s accident, nor did Nancy write out such a will. The statute was

relevant, however, because it specifically excluded the possibility that a patient’s

Living Will could provide for the withdrawal of nutrition or hydration tubes. Thus,

the Missouri legislature appeared to have made a decision that the withdrawal of

nutrition and hydration was not within the realm of acceptable conduct even with the

written consent of the patient.59 Based on this finding, the Missouri Supreme Court

held that the state’s interest in protecting life would require a clear and convincing

showing of Nancy’s wishes prior to withdrawal of medical treatment.60

The Cruzan case, because of its facts, presented two legal issues to the Supreme

Court: first, whether Nancy Cruzan had the constitutional right, even absent legislative

approval, to consent to the withdrawal of nutrition and hydration; second, whether this

right could be exercised by a guardian, and what standard of proof would be required

to show that such a course of action was the intent of the patient. The Supreme Court

ultimately decided that the state may require clear and convincing evidence of her

wishes, and as her guardians did not have sufficient proof, the nutrition and hydration

could not be withdrawn.61 The Supreme Court did not technically decide the issue

whether the Missouri court could have acted contrary to a clear and convincing

expression of Nancy Cruzan to withdraw medical procedures, although, as discussed

later, the implication of the case is that it could not.

Mo. Rev. Stat, § 459.010 et seq. (1986).

The Supreme Court of Missouri graphically pointed out in its opinion how this case

differed from many previous medical decision cases. Nancy was not dead, nor was she

terminally ill, and she could have lived up to thirty years in her condition. Essentially, the

decision, as stated by the court, was whether the hospital should be allowed to cause Nancy

Cruzan to die by starvation or dehydration. The Supreme Court of Missouri considered the

case as one of first impression for Missouri, and declined to allow the hospital to withdraw

nutrition and hydration. Cruzan v. Harmon, 760 S.W.2d 408, 427 (Mo. 1989)(en banc).

Cruzan v. Harmon, 760 S.W.2d 408, 426 (1988)(en banc).

The Court found that it was not constitutionally required that guardians or family be

allowed to effectuate such a decision. Cruzan, 497 U.S. at 284. Rather, the Court

determined that not only could a state require that a patient’s own personal wishes be

examined, but that absent clear and convincing evidence of such wishes, a state could

decline to allow withdrawal of treatment. To bolster this argument, the Court cited other

instances in which a state may require certain formalities prior to implementing the wishes

of an individual, such as the requirement that a will be in writing. Id. However, it does not

appear that the Missouri Supreme Court requirement of “clear and convincing” evidence

was based on the assumption that most individuals would prefer life to death; rather, the

requirement would appear to have been based on a non-individualized state interest in “life”

irrelevant of the wishes of the individual. Id. at 280-281. As the Court concurred that there

was no “clear and convincing” evidence of Nancy Cruzan’s wishes, the Supreme Court held

that Missouri’s generalized interest in the preservation of life allowed the State to refuse the

guardian’s wishes to terminate treatment. Id. at 286-87.

CRS-14

The Court, in deciding the Cruzan case, first examined the case of In re

Quinlan,62 one of the first state court cases to examine these issues. Karen Quinlan,

similarly to Nancy Cruzan, had suffered severe brain damage as a result of oxygen

starvation, and medical opinion agreed that she would not regain cognitive function.

Karen Quinlan, unlike Nancy Cruzan, was both attached to a respirator and provided

nourishment by a feeding tube, and her guardians sought only removal of the

respirator. In Quinlan, the New Jersey Supreme Court found that Karen Quinlan had

a right of privacy to terminate her life in its vegetative state. This right, however, was

not found to be absolute, but was to be balanced against the rights of the state. The

Quinlan court found that the state’s interest in preserving life diminishes as the degree

of bodily invasion increases, and as the prognosis dims. Ultimately, there comes a

point at which the individual’s rights overcome the state’s interest. The court further

found that the only practical way to give effect to this right would be to let the

guardian and the family use their best judgment in making a decision.63

The majority opinion of the Cruzan Court, authored by Chief Justice Rehnquist

and joined by Justices White, O’Connor, Scalia and Kennedy, appears to have

implicitly accepted the primary holding of the Quinlan and related state cases, which

was that a patient has a constitutional right to refuse medical treatment that sustains

life.64 However, the language of the opinion did leave some ambiguity as to the

general application of this right.65 Justice O’Connor, in her concurring opinion, leaves

355 A.2d 647 (N.J. 1976), cert denied, 429 U.S. 922 (1976).

The Cruzan Court noted that since the case of Quinlan, many other courts have found

legal grounds to allow termination of medical treatment. It would appear, however, that

these cases have been based on two distinct lines of legal reasoning. The first, consistent

with In Re Quinlan, is the finding that there is a constitutional right of privacy which

protects decisions made concerning life-sustaining treatment. The second line of reasoning

is based on the common law right to refuse medical treatment, expressed as the requirement

of informed consent. Under common-law, a physician who performs a medical procedure

without valid consent is performing a battery, and the law will act to prevent and punish

such treatment. Hershley v. Brown, 655 S.W.2d 671, 676 (Mo. App. 1983). Thus, the

argument is made, individuals who wish to decline medical treatment, even if such will

result in their death, have the right to do so.

497 U.S. at 280.

The majority opinion states the following:

Petitioners insist that under the general holdings of our cases, the

forced administration of life-sustaining medical treatment, and even

of artificially-delivered food and water essential to life, would

implicate a competent person’s liberty interest. Although we think

the logic of the cases discussed would embrace such a liberty interest,

the dramatic consequences involved in refusal of such treatment

would inform the inquiry as to whether the deprivation of that interest

is constitutionally permissible. But for purposes of this case, we

assume that the United States Constitution would grant a competent

person a constitutionally protected right to refuse lifesaving hydration

and nutrition.

(continued...)

CRS-15

no such ambiguity, and sets forth an extensive opinion of the basis and scope of this

right. Further, Justices Brennan, Marshall, Blackmun and Stevens, in dissent, also

recognize the existence of this right. Only Justice Scalia, in a concurrence, signals

that he would have resisted the Court’s acceptance of this constitutional doctrine.

Thus, despite the ambiguous language contained in the majority opinion, five justices

— O’Connor, Brennan, Marshall, Blackmun and Stevens — appear to support the

establishment of a right to termination of medical treatment.

4. Implications of Cruzan.

The statutes of the various states do not generally provide for the implementation

of any form of Directive other than Living Wills and durable powers of attorney. Yet,

there may be other instructions which a person desires to leave regarding his medical

treatment,66 and Cruzan appears to have upheld a person’s constitutional right to

refuse any medical treatment even if the result will be death. Thus, under Cruzan, an

individual’s right to refuse medical treatment may be broader than the rights which are

granted by most state statutes.

For instance, as noted earlier, many states’ “Living Will” laws deal only with

terminal illness, and thus do not apply where the patient is in a persistent vegetative

state, but in no immediate danger of death.67 Theoretically, an advance medical

directive could be drafted which set forth the procedure to be followed if a patient

became persistently vegetative, but it might not qualify under a state’s Living Will

statute. The holding in Cruzan, however, implies that a state may not prohibit a clear

advance medical directive, at least regarding life-sustaining technology.68 Thus, to be

(...continued)

The second sentence of this quote appears to hedge the question as to whether refusal

of medical treatment by a patient should always be respected, at least when the

consequences may be “dramatic”. Arguably, this may be because another case could occur

where a state interest would outweigh the patient’s liberty interest. In fact, in the Supreme

Court cases cited in Cruzan, medical treatment was imposed over objection of a competent

patient based on an overriding state interest. See Washington v. Harper, 494 U.S. 210

(1990)(state interest in maintaining order overrides a prisoner’s liberty interest in avoiding

the forced application of anti-psychotic drugs); Parham v. J.R., 442 U.S. 584, 604-08

(1979)(a state’s interest in certain administrative procedures used in confining a child to

mental institution overrides the child’s liberty interest).

An advance medical directive is a statement by a competent person indicating his wishes

regarding medical treatment in the event of future incompetence. LAZAROFF & ORR, LIVING

WILLS AND OTHER ADVANCE DIRECTIVES, ETHICAL ISSUES IN THE CARE OF THE ELDERLY

523 (1986). Generic advance directives have firmly established legal precedents, but their

use in medical contexts has generally not been addressed by statute. Unlike most “Living

Will” statutes, advance directives may be used to address medical questions during any

period of incompetence, not just those periods association with terminal illness.

See Unif. Rights of the Terminally Ill Act § 3, 9B U.L.A. 615 (1980).

Generally, states may not act so as to unreasonably burden the exercise of constitutional

rights. Thus, a state may not erect procedural barriers for a patient to express his intent to

exercise his constitutional right to refuse medical treatment. Cruzan, 497 U.S. at 305 (J.

Brennan, dissenting). While the Supreme Court was willing to accept a requirement of clear

(continued...)

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consistent with Cruzan, a state may be required to fully implement an advance

medical directive despite its own statute.69

A question left unresolved by Cruzan, however, is what type of medical

treatment may be refused under the Fourteenth Amendment.70 While refusing to be

attached to a respirator or a heart-lung machine is clearly within a patient’s right to

refuse treatment, it is not clear that the same can be said for a diabetic who refuses to

take insulin, an individual who declines the provision of antibiotics, or an accident

victim who refuses attempts to stem arterial bleeding. Of even greater concern is the

possibility that an individual can attempt a suicide and leave a suicide note invoking

a constitutional right to resist medical treatment.

(...continued)

and convincing evidence, it did so only after significant analysis. Consequently, the

implication of the Cruzan case would appear to be that a state may only act to facilitate a

patient’s desires, and not to restrict or arbitrarily nullify them. For this reason, any state

statutes or court opinions which restrict the use of advanced medical directives and durable

powers of attorney might be held to overly burden a patient’s intent and desire to refuse

medical treatment.

An issue not explicitly addressed by the Court was the type of limitations that may be

placed upon an individual appointed by the patient to make medical decisions. Such an

appointment, called a durable power of attorney because the appointment remains applicable

even after an individual has become incompetent, generally leaves considerable discretion

to the appointed individual to make a decision for the principal. Such an appointment may

be preferable to a living will, as the appointed surrogate can make a detailed evaluation of

the medical situation, and make a determination as to the patient’s treatment. What is

unclear is whether such a surrogate could be held to a “best interest” of the patient standard,

or whether the fact of the appointment of the individual by the patient to exercise his or her

constitutional rights would preclude any challenge to the decision made by that individual.

The Cruzan court stated that “[w]e are not faced with the question of whether a State might

be required to defer to the decision of a surrogate if competent and probative evidence

established that the patient herself had expressed a desire that the decision to terminate lifesustaining treatment be made for her by that individual”. Cruzan, 497 U.S. at 287, n.12.

Concerns were raised, prior to Cruzan, that a living will or other advance directive

executed in one state might not be honored in another state. The Cruzan case would appear

to dispel most of these concerns. Assuming that an individual had clearly set out his wishes

with sufficient detail to cover a particular medical situation, it would appear that any state

court would be required to acknowledge the document, and give effect to it. Absent some

indication of fraud or changed circumstance, the imposition of specific technical

requirements such as to the form or number of witnesses would appear to be inconsistent

with an individual’s constitutional right to refuse medical treatment as established under

Cruzan.

It is not yet clear what type of evidence a state can require before it will implement a

Directive which is not authorized by its statute. It would appear, however, that a written

directive which complied with the procedural requirements of a state’s living will or durable

power of attorney statutes would be strong evidence of a patient’s medical intent, and would

ultimately be enforced by a court.

The Supreme Court opinion in Cruzan contained almost no discussion concerning why

this particular type of medical technology, provision of nutrition and hydration, could be

withdrawn, even though the distinction between nutrition/hydration support and other forms

of medical support engendered considerable discussion in the court below. Cruzan v.

Harmon, 706 S.W.2d at 423-24.

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This question may be especially crucial to the lower courts in disposing of cases,

such as have arisen in the past, where otherwise healthy individuals have rejected

medical treatment for religious or other reasons.71 There is little indication that the

Court considered whether these distinctions would still be valid after Cruzan.

However, a close scrutiny of the language of the opinion reveals a notion that there

is a difference between providing “life-sustaining treatment” to a dying patient, and

“life-saving treatment” to a healthy patient.

Life-sustaining treatment does not appear to be a term of art, but is used

differently in different contexts.72 For purposes of this discussion, however, we will

define life-sustaining technologies as those drugs, medical devices, or procedures that

by continuous application can keep an individual alive who would otherwise die

within the near future.73 Life-saving technology, on the other hand, could be defined

to include those treatments which will keep an individual alive, but need not be

maintained on a continuous basis because the underlying condition is arrested,

reversed or cured. These definitions represent points on a continuum, and some

treatments may appear to fall in between depending on the context in which they are

provided.74

Under common law, the right to refuse medication represents one of the longest

standing individual “rights,” bolstering the argument for a constitutional right to

refuse life-sustaining intervention. Where a technology is life-saving, however, courts

have been less reluctant to override a patient’s wishes, especially when the underlying

Much of the case law in the area of refusal or termination of medical treatment to

competent patients involves the refusal of patients to accept medical treatment because of

religious beliefs. These often involve Jehovah’s Witnesses who are prohibited by their

religion from accepting blood transfusions. Although a court will often weigh religious

belief in making its decisions, many of these cases resulted in an order being issued

requiring medical treatment. See United State v. George, 239 F. Supp. 752 (D. Conn.

1965)(39-year-old father of four children); Powel v. Columbia Presbyterian Medical Center,

49 Misc. 2d 215, 267 N.Y.S.2d 450 (1965)(blood required for post-operative caesarian

care); John F. Kennedy Memorial Hospital v. Heston, 58 N.J. 576, 279 A.2d 670

(1971)(transfusions ordered for 22-year-old woman based on state interest in conservation

of life, and need to permit hospital to function according to professional standards).

See, e.g., Uniform Rights of the Terminally Ill Act § 1, 9B U.L.A. 161 (1989)(1996 Supp.)

(defining “life-sustaining treatment” as a medical procedure which serves only to prolong

the process of dying).

See Office of Technology Assessment (OTA), Life-Sustaining Technologies and the

Elderly 4 (1987).

For example, the application of antibiotics in an otherwise healthy individual which cures

a dangerous infection, and returns that individual to sustained health, would appear to be a

life-saving technology. On the other hand, continual doses of antibiotics to fight off

recurring infection in an elderly nursing home patient may be seen an life-sustaining

technology. Id.

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condition is medically treatable.75 Thus the question arises, what did the Court

approve of, and what lines implicitly were drawn.

Let us speculate for the moment that the Court assumed that the administration

of artificial nutrition and hydration was found to be a form of life-sustaining

technology. As the withdrawal of all nutrition would ultimately kill any patient, and

there was no indication that the nutrition and hydration could be successfully

withdrawn without threatening the life of Nancy Cruzan, the Court, by inference,

appears to be sanctioning refusal of a life-sustaining technology. However, during a

general discussion of a state’s interest in preserving life and preventing suicide, the

Court makes the following statement: “[w]e do not think a State is required to remain

neutral in the face of an informed and voluntary decision by a physically-able adult

to starve to death” (emphasis added). This dicta appears to represent some concern

that in a different fact situation, such as where a healthy individual attempted suicide

by fasting, states may intervene. Such intervention, which might include the use of

medical technology, thus appears to be distinguishable from the Cruzan case. Thus,

the court does appear to recognize that some life-saving, as opposed to life-sustaining,

medical technology might be imposed on an individual despite his or her

constitutional rights under the Fourteenth Amendment.

5. The Schiavo case.

Theresa Schiavo, at the age of 27, suffered a cardiac arrest as a result of a

potassium imbalance, and never regained consciousness.76 Since 1990, she had lived

in nursing homes and a hospice with constant care, where she was fed and hydrated

by tubes. Although she had numerous health problems, none were life threatening. A

number of courts found that Theresa, whose husband was acting was as her guardian,

was in a permanent or persistent vegetative state.77 Further, Theresa’s brain damage

was apparently incurable, as much of the cerebral cortex had been replaced by cerebral

spinal fluid.

In 2001, the Florida Court of Appeals considered whether to allow the

termination of life-prolonging procedures under chapter 765 of the Florida Statutes78

and under the constitutional guidelines enunciated by the Florida Supreme Court in

See supra note 71. It should also be noted that there appears to be no common law

precedent for “suicide” in our legal system. See Thomas P. Marzan, supra note 34 at 1

(1985). Arguably, the refusal of life-saving medical technology may in some cases represent

a form of suicide, for instance where a protest fast becomes life-threatening. Thus,

arguably, the constitutional right that can be inferred from Cruzan would not extend as far

as refusal of all life-saving medical technology.

In Re Guardianship of Theresa Marie Schiavo, 780 So. 2d 176 (Fla. App. Ct. 2001).

Unlike a coma, a person in a persistent vegetative state is not unconscious, but is

characterized by cycles of wakefulness and sleep without cognition or awareness. See

supra note 56 and accompanying text.

Chapter 765 deals with Health Care Advance Directives.

CRS-19

the case of In re Guardianship of Browning.79 In the case of Browning, the Florida

Supreme Court held that, under the Florida Constitution, the guardian of a patient who

is incompetent but not in a permanent vegetative state and who suffers from an

incurable, but not terminal condition, may exercise the patient’s right of

self-determination to forego sustenance provided artificially by a nasogastric tube. The

case, however, did require that the guardian have clear and convincing proof that the

patient would not have wanted food and water provided to them in their present

medical circumstance.

In the Schiavo case, the trial court had found that, despite conflicting testimony,

there was sufficient evidence to support such a finding. Although the testimony only

involved a few oral statements to her friends and family about the dying process, the

appeals court also found that there was a sufficient basis for the trial court’s

conclusion. The appeals court finding was apparently influenced by the nature of

Theresa Schiavo’s medical condition, and whether she would have wanted continued

medical care after being in a persistent vegetative state for over ten years.

This court decision, however, was followed by a series of legal proceedings

initiated by the parents of Theresa Schiavo80 and others,81 intended to overturn or

delay implementation of the appeals court decision. Then, in October of 2003, the

Florida Legislature passed a bill granting the Governor the authority to “stay” the

withholding of nutrition and hydration in a situation such as existed in the Schiavo

case,82 a power which the Governor promptly exercised.83 This legislative “stay,”

however, was challenged as a violation of the doctrine of separation of powers and of

Theresa Schiavo’s due process rights, and the law was subsequently overturned by the

Florida Supreme Court.84 The trial judge in the case set the date of March 18 for the

withdrawal of nutrition and hydration, and the withdrawal occurred on that date.85

Theresa Schiavo died on March 31, 2005. For a discussion of congressional and legal

actions which occurred on and around that date, see “The Federal Role,” infra.

568 So. 2d 4 (Fla. 1990).

See e.g., In Re Guardianship of Theresa Marie Schiavo, 792 So. 2d 551 (Fla. Ct. App.

2001); In Re Guardianship of Theresa Marie Schiavo, 800 So. 2d 640 (Fla. Ct. App. 2001);

In Re Guardianship of Theresa Marie Schiavo, 851 So. 2d 182 (Fla. Ct. App. 2003).

See, e.g., Advocacy Center for Persons with Disabilities v. Schiavo, 2003 U.S. Dist.

LEXIS 19949 (M.D. Fla. October 21, 2003).

See Fla. Stat. § 765.404 note.

See Laurie Cunningham, Legal Experts Say New Law Allowing Governor to Overrule

Court Violates Separation of Powers, Miami Daily Business Review 1 (October 23, 2003).

Bush v. Schiavo, 885 So. 2d 321 (2004).

For a summary of relevant factual and legal events surrounding this case, see

[http://www.miami.edu/ethics2/schiavo/timeline.htm] and CRS Report RL32830 (pdf), "The

Schiavo Case: Legal Issues."

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C. Assisted Suicide

Although suicide is not a crime in this country, assisting another person to

commit suicide may, in many states, result in criminal penalties being imposed.86

Legal scholars have argued that it is logically inconsistent to punish a person who is

“aiding and abetting” the principal actor, here the person committing suicide, when

the latter is not punished.87 Such laws, however, roughly parallel laws which protect

minors and incompetent persons from exploitation, such as laws against statutory

rape.88 Thus, while a state may decide that treatment would be more effective than

punishment for a suicidal person, the state might also reason that punishment would

be a more effective deterrent to prevent persons from assisting a suicide. Further,

such law can serve as a protection against a person attempting to encourage or coerce

a vulnerable person to commit suicide.89

1. Historical Precedent.

Assisted suicide, as with suicide generally, has a long history of disfavor.90

Unlike legal prohibitions regarding suicide, however, which were not adopted by the

American legal system, laws against assisted suicide have been on the books for many

years.91 Thirty-five states currently have statutes with penalties for assisted suicide92

and nine more have penalties based on case law.93 It is not clear, however, whether

these statutes have ever been vigorously enforced, and for many years the prosecution

of such cases appears to have been almost nonexistent.94 There are a few examples,

however, of convictions for assisted suicide where long sentences have been

imposed.95

It is important to distinguish assisting suicide from euthanasia. While assisting a person

to commit suicide by providing them the means to commit suicide is a specific crime with

mild to moderate criminal penalties, affirmatively killing a person, even with that person’s

consent, is murder, and can expose a person to significant jail sentences. Catherine D.

Shaffer, supra note 37, at 348.

Id.

An adult who engages in sexual conduct with a minor may be charged with statutory rape,

although the minor engaged in the sexual act willingly.

Catherine Shaffer, supra note 37, at 364-65.

Thomas J. Marzan, supra note 34, at 15, 20, 24.

For instance, the two statutes at issue in the cases of Vacco and Glucksberg before the

Supreme Court date from the 19th century. Id. at 73.

Michael Peltier, U.S. Man Wants Doctors to Help Him Kill Himself, Reuters World

Service (May 8, 1997).

Id.

From 1930 through 1985, not one state court decision on assisting suicide appears.

Catherine D. Shaffer, supra note 37, at 358.

Thomas J. Marzan, supra note 34, at 77.

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One of the reasons that few cases have been brought in this area is that where a

person is suicidal because of pain or disability, juries appear reluctant to convict

persons who assist them in committing suicide. For example, starting in 1990, Jack

Kevorkian, a retired pathologist, assisted scores of patients to commit suicide.

Various attempts to convict him of assisted suicide, however, were stymied by juries

refusing to convict. There are indications that the juries that acquitted Dr. Kevorkian

engaged in jury nullification, i.e. the jury found that all the elements of the crime had

been established, but failed to convict anyway.96 Because jury nullification establishes

no precedent and provides no guidelines, however, Dr. Kevorkian’s actions remain of

dubious legality.97

2. State Legislation.

Although there is currently a movement to legalize assisted suicide and active

euthanasia legislatively, this movement has little or no precedent in this country98 or

in others.99 The only example of domestic legislation approving of physician-assisted

suicide is an initiative passed by Oregon. This initiative allows persons who are

terminally ill to seek assistance in committing suicide if they meet certain criteria.100

A federal district court held that because the referendum failed to distinguish between

competent and mentally incompetent persons, depriving the mentally incompetent of

the protections of law afforded to the non-terminally ill, the law was a violation of the

Fourteenth Amendment.101 This decision, however, was vacated on other grounds.102

Of more significance, Attorney General Ashcroft has threatened the withdrawal of the

controlled substances licenses of doctors who use such substances for the purpose of

assisting suicide. This directive, however, was enjoined by the United States Court of

Appeals for the Ninth Circuit Court, and is currently before the Supreme Court.103

Jack Lessenberry, supra note 5 at A14.

Dr. Kevorkian was ultimately convicted of second degree murder for directly

administering lethal drugs to a terminally ill patient, and was sentenced to 10 to 25 years in

prison.

The cases of Quill and Compassion in Dying concerned laws which forbid assisted

suicide; the case holdings, which approved of assisted suicide, were based on constitutional

grounds.

Holland, the only country which has ventured into this area, has not passed legislation

authorizing assisted suicide, but has authorized suicide through a series of court cases.

STAFF OF THE SUBCOMMITTEE ON THE CONSTITUTION OF THE COMMITTEE ON THE

JUDICIARY, supra note 16, at 5. In 1995, the Northern Territory of Australia passed a law

authorizing physician-assisted suicide, which has been implemented and utilized. Associated

Press, Suicide Law Divisive in Australia, Fresno Bee, January 7, 1997, at A9.

100

Oregon Rev. Stat. 127.800. § 1.01, et. seq.

101

See Lee v. Oregon, 891 F. Supp. 1429, 1437 (D. Or. 1995), vacated on other grounds,

107 F.3d 1382 (9th Cir. 1997).

102

103

107 F.3d. 1382 (9th Cir. 1997).

See Oregon v. Ashcroft, 368 F.3d 1118 (9th Cir. Or., 2004), cert. granted, Gonzales v.

Oregon, 2005 U.S. LEXIS 1453 (2005). The Attorney General’s directive was successfully

(continued...)

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3. Constitutional Status.

In Glucksberg v. Washington, the Supreme Court held that the right to assisted

suicide is not a fundamental liberty interest protected under the Due Process Clause

of the Fourteenth Amendment.104 In Quill v. Vacco, decided the same day, the Court

held that enforcement of assisted suicide laws does not unreasonably discriminate, in

violation of the Equal Protection component of the Fourteenth Amendment, against

persons who are suffering or terminally ill.105 The ultimate impact of this decision is

that the “right to die” is unlikely to be expanded significantly by the courts.

a. Substantive Due Process.

Under the Fourteenth Amendment a “liberty interest” may only be infringed if

there is a sufficient state interest to justify such. If a “liberty interest” is deemed to be

fundamental, then it may not be infringed except by a narrowly tailored regulation

which furthers a compelling state interest.106 Where a liberty interest is not

fundamental, a court will subject an infringement to a much less restrictive analysis.

In Glucksberg, the United States Court of Appeals for the Ninth Circuit, struck

down an assisted suicide statute, drawing heavily from Supreme Court cases

concerning abortion. In particular, the court noted the emphasis on protecting personal

autonomy in Casey v. Planned Parenthood of Pennsylvania,107 which reaffirmed that

the Fourteenth Amendment protected a woman’s decision to have an abortion.

Characterizing laws against assisted suicide as essentially forcing suffering patients

to endure torture at the end of life,108 the court found a generalized right in hastening

one’s own death, and consequently struck down the assisted suicide statute as a

restriction on a fundamental liberty interest.109

The Supreme Court rejected this interpretation of the Fourteenth Amendment,

noting that the Court moves with “utmost care” before breaking new ground in this

area of liberty interests.110 Generally, the Court, which distinguishes between heavily

protected “fundamental rights” and less protected “substantive rights,” has indicated

an unwillingness to expand the number of “fundamental rights” protected under the

Fourteenth Amendment. The Court requires either that such rights must be deeply

103

(...continued)

challenged as being outside of the scope of his statutory authority. Id. An appeal of this

order is pending before the United States Supreme Court. See discussion notes 239-249 in

“The Controlled Substance Act,” infra.

104

521 U.S. 702 (1997).

105

521 U.S. 793 (1997).

106

Collins v. City of Harker Heights, 503 U.S. 115, 123 (1992).

107

505 U.S. 833 (1992).

108

79 F.3d at 814.

109

Id. at 839.

110

Glucksberg, 521 U.S. at 720.

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rooted in history111 or so central to personal autonomy that neither liberty nor justice

would exist without them.112 An analysis of these two criteria led the Court to reject

the broad interpretation of fundamental rights suggested by the circuit court in

Glucksberg.

I. Whether Assisted Suicide Is a Fundamental Right.

First, the Supreme Court rejected the argument that suicide or assisted suicide is

rooted in the nation’s history and tradition. As noted above, suicide and assisted

suicide have long been disfavored by our judicial system, and even the absence of

criminal sanction for suicide has not prevented the legal system from using the civil

commitment system as a route to prevent suicide. Further, there is a deep societal

resistance to suicide that includes many major religions and many groups associated

with health care.113

The Court easily dismissed the historical approach, noting an almost universal

rejection of the practice in the Nation’s history.114 As to the second element - whether

the right at issue is “so central to personal autonomy that neither liberty nor justice

would exist without them” - the Court rejected the application of this broad language,

and distinguished cases regarding personal autonomy such as Casey v. Planned

Parenthood of Pennsylvania and Cruzan v. Missouri Department of Health.

The District Court in Glucksberg, which struck down the assisted suicide statute,

felt that the "right to die" was similar to the right to abortion. That court found many

similarities between the two situations, including the intimacy of the decision, and the

susceptibility to untoward influence by other persons.115 But, unlike abortion, which

involves the competing interests of the mother and the fetus, the court emphasized that

assisted suicide involves only the individual and his or her own interests.116 The en

banc Court of Appeals, which upheld the district court, also relied heavily on language

in Casey which affirmed the right to abortion as one of the “most intimate and

personal choices a person may make in their life-time, choices central to personal

dignity and autonomy.”117

The Supreme Court rejected this use of Casey, noting that while many of the

interests protected by the Due Process Clause involved personal autonomy, this did

111

See Bowers v. Hardwick, 478 U.S. 186, 192, overturned by Lawrence v. Texas, 123 S.

Ct. 2472 (2003).

112

Id.

113

See Amicus Curiae Brief for the American Medical Association, Vacco v. Quill, No. 951858, at 2 (U.S. 1996)(the American Medical Association, the American Nurses

Association, the American Psychiatry Association, and 43 other medical societies oppose

a constitutional right to assisted suicide).

114

Glucksberg, 521 U.S. at 728.

115

Compassion in Dying v. Washington, 850 F. Supp. at 1460-1461.

116

Id. at 1460.

117

79 F.3d at 801, quoting Casey v. Planned Parenthood, 505 U.S. at 851 (1992).

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not mean that all important, intimate, and personal decisions are so protected.118 The

Court, again noting the Nation’s historical rejection of assisted suicide, declined to

extend the reasoning of Casey to cover this practice. This was consistent with the

Court’s previously expressed reluctance to extend the reasoning of Roe v. Wade into

other areas of “personal autonomy.”119

The Court had even less trouble distinguishing the instant case from Cruzan v.

Missouri Department of Health,120 which addresses the right to terminate medical

treatment.121 In Cruzan, the Supreme Court was developing that line of cases which

derived from the right to bodily integrity. The Cruzan case was important because it

dealt with the small but significant subcategory of informed consent cases that involve

the refusal of medical treatment when it is apparent that withdrawal of the treatment

would result in death. That is a separate issue from whether a person can affirmatively

request that another person cause his death. All cases which have dealt with the "right

to die" have recognized and maintained the distinction between “active” and “passive”

medical intervention,122 and the Supreme Court declined to eliminate this distinction.

ii. State Interests in Preventing Assisted Suicide.

If the Court had determined that a fundamental liberty interest exists in assisted

suicide, then it would have examined whether there was a compelling governmental

interest which was narrowly tailored to justify an infringement on this right.

However, as the Court found that there was no fundamental right to assisted suicide,

the state needed only to show that its interests were rationally related to any

infringement. The Court found numerous state interests, including 1) a general

interest in the preservation of life, and a specific interest in maintaining barriers

against suicide; 2) an interest in avoiding situations where it would be to the

advantage of a third party to influence a person to commit suicide; 3) an interest in

maintaining the integrity of the medical profession; and 4) an interest in preventing

acts such as voluntary or involuntary euthanasia.

Historically, the state has been found to have a legitimate interest in discouraging

physically healthy individuals from committing suicide.123 The district court in

Glucksberg argued that interest was insufficient when applied to terminally ill

persons, and suggested that a legislature could define the appropriate circumstance

118

521 U.S. at 724.

119

The Court speaking in Roe in 1973 made it clear that, despite the importance of its

decision, the protection of personal autonomy was limited to a relatively narrow range of

behavior, including activities relating to marriage, procreation, contraception, family

relationships, and child rearing and education. 419 U.S. at 152.

120

497 U.S. 261 (1990).

121

521 U.S. at 725-26.

122

Traditionally, the law distinguishes between acts of “omission” and acts of

“commission.” Thomas J. Marzan, supra note 34, at 10.

123

Compassion in Dying v. Washington, 850 F. Supp. at 1461.

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where assisted suicide could be banned.124 The Supreme Court held, however, that a

state is not compelled to make such distinctions regarding quality of life.125

Unlike termination of medical treatment, which by its nature involves terminal

or incurable persons, assisted suicide can be extended to a larger population.126 Thus,

the argument has been made that societal pressure against devoting resources to the

poor, elderly, infirm or disabled would result in subtle or unsubtle pressure for those

persons to seek assisted suicide rather than face an uncertain medical or economic

future.127 Here, the Court held that a state could rationally consider as too high the risk

that an assisted suicide statute would be manipulated to encourage a person to commit

suicide.128

The Court also held that a state may assert an interest in allowing its medical

profession to set standards to protect both its integrity and the trust of the populace.129

Many medical organizations consider doctor-assisted suicide to be incompatible with

a doctor’s Hippocratic oath, and would be concerned that such a role for doctors

would lead to a conflict with their roles as healers.130 There is also a concern that if

assisted suicide were considered a treatment option, the progress in the ability of

physicians to combat serious disease would be undermined.131

Finally, the Court held that permitting assisted suicide could start society down

the path to active euthanasia, both voluntary and involuntary.132 As noted earlier,

advocates for physician-assisted suicide often do not distinguish between assisted

suicide and euthanasia, despite the potential for abuse where the patient does not

control the final administration of the lethal treatment. The Court noted that allowing

assisted suicide would create the potential for this line to be crossed without detection,

and that it would be extremely difficult to police or contain this distinction.133

124

Id. at 1455.

125

521 U.S. at 729.

126

Yale Kamisar, supra note 18, at 755.

127

Compassion in Dying v. Washington, 49 F.3d at 592. It has also been noted that it may

be in the financial interest of a person related to or caring for an ill patient for that patient

to die. Id. at 592-93.

128

521 U.S. at 732. It should be noted, however, that others have argued that such dire

predictions, made with regard to the assertion of other rights, have failed to come true.

Compassion in Dying v. Washington, 79 F.3d at 825-26 (noting arguments that women

would be pressured into abortions if the procedure were legalized).

129

521 U.S. at 731.

130

Compassion in Dying v. Washington, 49 F.3d at 592.

131

Id. It has been argued, however, that since doctors are already engaged in the unregulated

practice of assisted suicide, that the integrity of the profession would be better served by

regulation of the practice. Compassion in Dying v. Washington, 79 F.3d at 828.

132

521 U.S. at 732.

133

Id.

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b. Equal Protection.

In Quill v. Vacco, a separate argument was made that enforcing a statute banning

assisted suicide would discriminate against individuals who are terminally-ill but are

not on life support. This argument relies on the fact that individuals with terminal

diseases have a constitutional right, and often a statutory right, to request termination

of medical treatment, which will ultimately cause their deaths. If terminally-ill

patients not on life support are found to be similarly situated, then the denial of the

right to assisted suicide is arguably a violation of equal protection.

As with due process fundamental rights analysis, equal protection analysis uses

different standards by which to evaluate a law, depending on the class of people being

discriminated against. While a high level of scrutiny is reserved for certain “suspect

classifications” such as race or religion,134 and an intermediate level of scrutiny is

applied to certain others such as “gender classifications,”135 distinctions based on other

characteristics, such as medical condition, would generally be evaluated under a

rational basis test. Thus, if a court can ascertain any rational governmental interest in

making such a distinction, the law will be upheld.136

The Court in Vacco noted that the class of individuals being discriminated

against here, terminally ill patients not on life support, would not constitute a

traditional “suspect classification.”137 Consequently, a court would need to look only

at whether there was a rational basis to distinguish between the treatment of persons

who are on life support and those who are not. The Court noted that the distinction

between assisting suicide and withdrawing life-sustaining treatment was widely

recognized both legally and medically, and comported with fundamental legal

principles of causation and intent.138 Thus, the Court held that maintaining a

distinction between letting a person die by natural means and causing their death was

certainly a sufficient rational basis to preclude a successful equal protection challenge.

D. Active Euthanasia

Active euthanasia, or administering a lethal treatment to a person, could arguably

be treated in the same way as assisted suicide. Certainly the line between assisted

suicide and active euthanasia has been blurred by commentators and the media in their

discussions of the right to die.139 For instance, the phrase “physician assisted” suicide

has often been used without distinguishing whether a doctor was prescribing a lethal

treatment or administering it.140 Further, the argument can be made that if a person has

134

Quill v. Vacco, 80 F.3d at 726.

135

Id.

136

Id. at 725.

137

Vacco, 521 U.S. at 799.

138

Id. at 801.

139

80 F.3d at 747.

140

Id.

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the right to self-administer a lethal treatment, then he should have the right to seek

such treatment from others.141

The distinction between assisted suicide and active euthanasia is, however, both

legally and practically significant, and is maintained in almost all legal jurisdictions.

In the case of assisted suicide, the actual fatal procedure is completed by the patient,

thus shielding the person assisting from direct legal responsibility for the death.

Although, many states have specific statutes that ban assisting in a suicide, the act is

not treated as homicide, is rarely prosecuted and has relatively low criminal

penalties.142 The situation is different if another person actually implements the fatal

procedure. Since a person cannot generally consent to a crime, killing a patient, even

if he asks to be killed, is considered murder, a serious crime in all fifty states.143 Even

prominent proponents of the right to assisted suicide have been uncomfortable with

advocating active euthanasia,144 although others argue that maintaining a distinction

between the two would be difficult.145

Ultimately, the most significant distinction between assisted suicide and active

euthanasia may be the susceptibility of active euthanasia to abuse. While a person

who provides a patient the means of committing suicide may be in a position to bring

pressure on that person to do so, the decision would ultimately lie with the patient, and

thus there is no issue of consent. Where another party commits the act, however, the

issue of consent must be addressed, and it may be difficult to establish such consent

when the patient is dead. Because active euthanasia appears to be more susceptible

to abuse than does assisted suicide, a state could reasonably distinguish between these

two practices as a matter of public policy. Enforcement prohibitions on active

euthanasia may be difficult, however, as the practice appears to most often occur

under the guise of palliative care.146

E. Palliative Care

Another form of medical treatment which can result in a hastened death is

palliative care. Palliative care is medical treatment to relieve pain, but in terminal

cases, the escalating levels of pain medication can ultimately reach toxic levels, killing

the patient.147 This type of treatment is less controversial than the other categories, and

141

Id.

142

Catherine D. Shaffer, supra note 37 at 352.

143

Id. at 351.

144

Yale Kamisar, supra note 18, at 747 (noting that Dr. Quill, the named plaintiff in the

Quill v. Vacco case, initially resisted arguing for euthanasia because of the risk involved).

145

Id. at 749-750.

146

Susan Okie, AIDS Doctors Report Prescribing Lethal Drugs, WASHINGTON POST,

February 11, 1997, Health Section at 5.

147

Compassion in Dying v. Washington, 79 F.3d at 839 (J. Beezer, dissenting).

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generally has few legal repercussions.148 In fact, Justice O’Connor, in a concurring

opinion in Glucksberg, has indicated that a patient may have a constitutional right to

palliative care.149

Because palliative care can ultimately result in a shortened life-span, however,

it would appear to raise policy concerns similar to the other “right to die” issues.150

Further, the line between palliative care and active euthanasia is extremely difficult

to monitor, and it appears that to the extent that unsanctioned euthanasia is being

practiced by doctors, much of it may occur under the guise of palliative care. While

palliative care by itself may raise few policy issues, its susceptibility to abuse may

make it the most likely area where evasion of the law might occur.

III. Who Decides: Individuals, Guardians,

and the Court

Medical decision-making regarding terminally or chronically ill persons has the

additional complication that many such patients are comatose or so disabled that they

are not legally competent to make health care decisions. Consequently, the issue

arises as to whether the various “rights to die” can be exercised by others on behalf

of the legally incompetent individual, and what standards should apply. While

virtually all the law in this area relates to the termination of medical treatment, such

situations could also arise if active euthanasia became a legal option.151

Differing standards have been adopted by various courts to address the problem

of discerning an unresponsive patient’s desires for medical treatment. Some courts

attempt to discern the “subjective intent” of the patient, either through (1) written

documents such as a Living Will, advance medical directives, or a durable power of

attorney; (2) specific oral statements; (3) generalized inquiries regarding a patient’s

prior attitudes and past statements; or (4) attempts to discern what a patient would

decide, if cognizant and given the relevant facts regarding her prognosis.152 There is

also another line of cases which focuses less on the subjective intent of the patient,

and more on the objective condition of the patient. Under this “objective test,” the

issue becomes whether the burdens of a patient’s condition are such as to justify a

148

At least one judge has distinguished palliative care as without legal consequence, because

the intent of the act is pain relief, and not to kill. 79 F.2d at 857 (J. Kleinfield, dissenting).

149

Glucksberg, 521 U.S. at 797-98 (O’Connor, J., concurring).

150

STAFF OF THE SUBCOMMITTEE ON THE CONSTITUTION, COMMITTEE ON THE JUDICIARY,

104TH CONG., supra note 16, at 5.

151

As legally incompetent patients would most likely be incapable of committing suicide,

surrogate decision-making would appear to either involve termination of medical treatment

or active euthanasia.

152

See Developments in the Law of Medical Technology and the Law, 103 Harv. L. Rev.

1519, 1647-49 (1990); Kaenezis, Patient’s Right to Refuse Treatment Allegedly Necessary

to Sustain Life, 93 A.L.R.3d 67 (1979).

CRS-29

withdrawal; the opportunity for oppression and abuse, however, generally leads a

court to take a hard look at the facts of such a case.

Using the above standards, many courts have found ways to approve the

withdrawal of medical treatment from terminally ill or persistently vegetative patients.

Some courts, however, have resisted these efforts, especially in the more difficult

cases where there is no clear indication of the intent of the individual. This, for

example, was the case when the Missouri Supreme Court refused to allow the parents

of Nancy Cruzan to authorize the withdrawal of nutrition and hydration. In Cruzan,

however, the United States Supreme Court did little more than decide that requiring

proof of Nancy’s intent by clear and convincing evidence was acceptable. What is

unclear is whether there are any alternative tests which may be overly burdensome to

this newly identified constitutional right.

A. The Subjective Intent Test

Prior to the Supreme Court’s decision in Cruzan, many courts had determined

that an incompetent patient who did not wish to have life-sustaining medical

technology used indefinitely, as evidenced by previous statements made by that patient

when competent, should have those wishes given effect.153 For instance, in the Cruzan

case, in order to fulfill this “subjective intent test,” the trial court had attempted to

discern what Nancy Cruzan’s attitude was toward sustained medical intervention. The

court found that Nancy Cruzan was a vivacious, active, outgoing and independent

person who preferred to do everything for herself. About a year prior to her accident,

Nancy apparently had discussions in which she expressed the feeling that she would

not wish to continue to live if she couldn’t be at least “half-way normal”. Based on

these two factors, the trial court found that Nancy Cruzan would have rejected her

existing medical treatment.154

As has been discussed previously,155 the Missouri Supreme Court reversed this

decision, holding that Nancy’s intent had not been shown by clear and convincing

evidence. This standard, which had been utilized previously in other jurisdictions, was

ultimately upheld by the Supreme Court, but in doing so, the Court did not indicate

whether a more burdensome requirement than clear and convincing evidence could

153

See, e.g., In Re Storar, 52 N.Y. 2d 363, 420 N.E. 2d 64, cert denied, 454 U.S. 858 (1981).

154

Relying solely on these two factors, the trial court appeared to expand what would

normally be considered proof of “consent” under a common-law right to refuse treatment.

Generally, for there to be true informed consent to refuse medication, a patient would need

to be specifically aware of the possible circumstance of his or her physical condition, and

would need to indicate specifically what could or could not be done. Apparently, the trial

court, faced with conflicting social mores, was attempting to balance the benefits of

continued treatment against the burdens of continued treatment. This attempt at balancing

sometimes becomes even more overt under the objective test.

155

See supra notes 58-61 and accompanying text.

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be required, and thus did not explicitly address the degree to which a state could

hinder this newly recognized right.156

B. The Objective Test

A more difficult question arises if a patient has left no prior written or oral

indications as to his or her medical wishes in the case of a serious illness. A number

of lower courts, when confronted with a patient who has left little or no indication as

to his intent, have developed rationales to objectively establish what the patient would

want, if he were aware of his circumstance. These “objective tests,” or the related

“best interest standards,” attempt to move beyond the subjective intent of the patient,

and focus instead on the details of the present situation. In the In the Matter of

Conroy case,157 the New Jersey Supreme Court, refusing to terminate life-support for

an incompetent but conscious patient,158 established two alternative standards to the

subjective test to be used when the patient in question had not made his wishes clear

concerning the withdrawal of medical treatment - the limited objective and the purely

156

In contrast to Missouri’s “clear and convincing” standard, a majority of the states that

have considered the issue allowed a form of “substituted judgment,” so that a family

member or guardian can make a decision for an incompetent patient. Gasner, supra note 7

at 14.

157

158

86 A.2d 1209 (N.J. 1985).

In In the Matter of Conroy, 486 A.2d 1209 (N.J. 1985), Claire Conroy was an eighty-two

year old resident of a nursing home, and her only surviving relative, a nephew, was

appointed as her guardian. Ms. Conroy, because of an organic brain syndrome, had become

increasingly confused, disoriented, and physically dependent. As with Nancy Cruzan, a

feeding tube had been implanted to provide nutrition and hydration. When her nephew

brought suit seeking termination of medical treatment, Ms. Conroy was confined to bed in

a semi-fetal position. She suffered from heart disease, hypertension, diabetes, gangrene, and

a variety of other infections. On the other hand, she could move her head, neck and arms,

could scratch herself, and would attempt to pull at her bandages. Medical doctors testified

that Ms. Conroy was not comatose or in a chronic vegetative state, although her mental

condition was severely deteriorated. 486 A.2d at 1221.

To resolve the case, the New Jersey Supreme Court tried to balance the interests of the

State against the burdens of treatment. The court identified four state interests in such

circumstances - preserving life, preventing suicide, safeguarding the integrity of the medical

profession, and protecting innocent third parties. See Satz v. Perlmutter, 362 So.2d 359, 360

(Fla. 1980). The court indicated that the burden of being maintained on a life-support

system could, in some instances, outweigh the interests of the State.

In refusing to allow the withdrawal of Ms. Conroy’s feeding and nutrition, the

Supreme Court of New Jersey noted the vulnerability of nursing home populations, and the

sometimes grossly inadequate care and concern that they receive. The court further noted

that Ms. Conroy, although resistant to medical intervention throughout her life, had not

specifically addressed or provided for the contingency of being incapacitated and in need

of medical intervention. Ultimately, the court found that there was insufficient evidence to

support a finding either that Ms. Conroy’s wishes would be to terminate treatment, or that

the burdens imposed by continued treatment outweighed the state interest in life.

Consequently, the court declined to condone the removal of the feeding tube, even while

contemplating the possibility that absent an expression by the patient as to the withholding

of health care, a court might allow the withdrawal of medical care by a guardian.

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objective tests.159 Under the limited objective test, life-sustaining treatment may be

withheld when there is trustworthy evidence that the patient would have refused

treatment, and where the decision-maker is satisfied that the burdens of continued life

outweigh the benefits for the patient.160 Under a purely objective test, where there is

no evidence of subjective intent, not only must the burdens of treatment outweigh the

benefits, but the medical treatment must cause such recurring, severe and unavoidable

pain that administering the life-sustaining treatment would be inhumane.161 Under

these tests, the Conroy court found that there was insufficient evidence to allow the

withdrawal of Ms. Conroy’s feeding tube.162

The fate of the “objective intent” tests after Cruzan is uncertain. The tests are

clearly not overly burdensome to the right of the patient to refuse treatment, as they

are only invoked when there is little or no indication of subjective intent. Whether the

test is sufficiently attentive to the actual wishes of the patient, or whether the

“objective test” instead bypasses the need for an expressed desire by a patient, and

merely applies the desires of the guardian, the care-provider, or the court, however,

remain valid questions. As the Court pointed out in Cruzan, there is as much a Due

Process right to “life” as there is to death,163 and there may be situations where

guardians are not acting to protect the patient. Thus, although unstated, the Court’s

Cruzan decision, by relying almost entirely on individual autonomy, may signal that

“objective” decisions, which rely on third party choices, do not have the same

constitutional protections. Based on Cruzan, therefore, a state might ban its courts

from considering any factors except the expressed desires of the individual.164

159

486 A.2d at 1233.

160

Id.

161

Under the limited or purely “objective test”, courts appear to be introducing the concept

of balancing the benefits of life against the “benefits” of death, albeit still within the context

of individual rights. For instance, the Conroy court restricted its balancing to the physical

pain being felt by the patient because of continuing treatment. Arguably, this would limit

the application of the test to the conscious patient, as the value of life in a vegetative state

or in a coma is outside of our daily evaluation of “benefits and burdens.” Privacy, bodily

integrity, pain and suffering would not appear to be of particular relevance to a

determination of what was in the best interests of a vegetative or comatose patient.

162

486 A.2d at 1243.

163

Cruzan, 497 U.S. at 281.

164

Because the Missouri Supreme Court focused on the subjective intent of Nancy Cruzan,

the Cruzan Court did not have the opportunity to evaluate any “objective” consideration

which a court might ultimately weigh in this area. Because these fundamental life decisions

regarding dying have been debated primarily in the courts, and not legislatures, the focus has

been on individual rights versus the state’s interest. The ultimate balancing decisions which

society as a whole might make on these issues have been avoided by many states.

Ultimately, society may need to reconcile individual wishes, the interests of the immediate

family, and the interests of society at large on the use of medical resources, and this would

appear to be a role for the legislatures.

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C. The Never-Competent Patient

An unaddressed implication of the Cruzan opinion is that a state may provide

that only “competent” expressions of the desire to resist medical treatment need be

honored.165 Thus, arguably, a minor child or an individual permanently incompetent

because of disease or mental disability could be effectively prohibited from exercising

his right to have medical treatment withdrawn. Some state courts have allowed such

individuals to have medical treatment withheld based on variations of the objective

tests.166 If, however, an incompetent patient were sufficiently lucid to make his or her

wishes known, an argument could be made that to deny the right to have treatment

withheld would be an Equal Protection violation.167

IV. The Federal Role

A. Congressional Authority

As discussed above, the vast majority of regulation of the “right to die” has been

done at the state level. This regulation is an outgrowth of the states’ authority to

legislate generally on all matters within their territorial jurisdiction.168 The powers of

the federal government, on the other hand, are limited to those enumerated in the

Constitution.169 These powers have been interpreted broadly, however, so as to create

a large potential overlap with state authority.

For instance, § 5 of the Fourteenth Amendment gives the Congress the power to

enforce the guarantees of the Fourteenth Amendment, including the right to due

165

The Cruzan opinion upheld the Missouri Supreme Court, stating that “Missouri . . . has

established a procedural safeguard to assure that the action of a surrogate conforms as best

it may to the wishes expressed by the patient while competent.” Cruzan, 497 U.S. at 280.

166

See, e.g., Superintendent of Belchertown State School v. Saikewicz, 373 Mass. 728, 370

N.E. 2d 417 (1977). The reasoning of this court was that the patient, a 67 year old

profoundly retarded man, would have refused treatment if he had been competent and aware

of his circumstance. This holding has, however, been criticized as circular.

167

The Cruzan court summarily dismissed an equal protection argument that its holding

would unjustly discriminate between the rights of competent patients and the rights of

incompetent patients. Cruzan, 497 U.S. at 261. The Court held this argument inapplicable

because the issue being discussed was the choices made by a competent person versus the

choice made for an incompetent person. If a lucid, but incompetent person could make his

wishes known, however, the reasoning of the Court in Cruzan might be distinguished.

168

This "police power" does not arise from the Constitution, but is an inherent attribute of

the states' territorial sovereignty.

169

Article I, §1, of the Constitution provides that "All legislative powers herein granted

shall be vested in a Congress of the United States." Unlike a typical grant of power to states

Article I, §1, does not grant to Congress "all legislative power," but rather grants to

Congress only those specific powers enumerated in §8 and elsewhere in the Constitution.

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process and equal protection.170 An argument can be made that since the due process

clause applies to cases litigated at the state court level, that Congress can regulate the

manner in which courts consider cases involving the termination of medical treatment.

As discussed below, however the Supreme Court has imposed significant limitations

on Congress’ authority under this provision.

The Congress also has broad authority over the commercial interests of the

nation, including the power to regulate commerce.171 The Commerce Clause,

discussed below, is one of the most far-reaching grants of power to Congress, and

would appear to allow the regulation of most commercial enterprises, including

hospitals and hospices. However, as discussed below, limits imposed on the

commerce clause may prevent the application of such power to all cases of

termination of medical treatment.

A final authority that Congress has often relied upon is the spending clause.172

The purposes for which Congress may tax and spend are very broad, and are not

generally limited by the scope of other enumerated powers under which Congress may

regulate.173 In addition, the courts have found that Congress has broad authority to

condition the conferral of federal benefits. While there may be limits to this authority,

the conditioning of the spending power is one of the more powerful means by which

the Congress can regulate certain beneficiaries of federal dollars.

1. Congress’ Authority Under 14th Amendment, § 5.

The 14th Amendment provides that a state may not deprive a person of their right

to life, liberty, or property without due process of law.174 Section 5 of the 14th

Amendment provides that Congress has the authority to enforce the provisions of the

14th Amendment.175 The Supreme Court, however, requires that legislation enacted

under § 5 of the Fourteenth Amendment be congruent and proportionate to a pattern

and history of constitutional violations.176 For instance, since only states are limited

by restrictions of the 14th Amendment, constitutional violations generally only occur

170

"No State shall make or enforce any law which shall abridge the privileges or immunities

of citizens of the United States; nor shall any State deprive any person of life, liberty, or

property, without due process of law; nor deny to any person within its jurisdiction the equal

protection of the laws." U.S. Const., Amend. XIV, §1. The Congress shall have power to

enforce, by appropriate legislation, the provisions of this article. Id. at §5.

171

"To regulate commerce with foreign Nations, and among the several States, and with the

Indian Tribes." U.S. Const., Article I,§ 8, cl. 3.

172

"The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises,

to pay the Debts and provide for the common Defence and general Welfare of the United

States; but all Duties, Imposts and Excises shall be uniform throughout the United States."

U.S. Const., Art. I, §8, cl. 1.

173

United States v. Butler, 297 U.S. 1 (1936).

174

U.S. Const. Amend. XIV, § 1.

175

U.S. Const. Amend. XIV, § 5.

176

See Flores v. City of Boerne, 521 U.S. 507, 520 (1997).

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when the actions are undertaken by state actors. Behavior or activities of private

parties acting in their individual capacities are not generally found to violate of the

Due Process Clause of the 14th Amendment, and are not generally vulnerable to

congressional regulation under § 5.177

Thus, identifying state actors in the context of the termination of medical

treatment becomes important in determining whether particular legislation is

congruent and proportionate, as the legislation must be in response to a history and

pattern of constitutional violations by such actors. For instance, in United States v.

Morrison,178 the Court evaluated 42 U.S.C.§ 13981, which provides a federal private

right of action for victims of gender-motivated violence against their attackers. The

Court considered whether the statute was within the power of the Congress to enact

under § 5 of the Fourteenth Amendment, considering that the suit was brought against

a private person, not against the state.

The plaintiff attempted to avoid the problem of state action by arguing that there

is pervasive bias in various state justice systems against victims of gender-motivated

violence, and that providing a federal private right of action was an appropriate means

to remedy this "state action." Although the Court found that this bias was supported

by a voluminous congressional record,179 the Court nonetheless rejected this argument,

finding that the remedy did not meet the City of Boerne test of "congruence and

proportionality to the injury to be prevented or remedied and the means adopted to that

end."180 Since the federal private right of action was not aimed at the allegedly

discriminatory actions by state officials, but was instead directed against the individual

engaging in the violence itself, the Court found that the action could not be supported

by reference to the Fourteenth Amendment.181

Thus the power of Congress as regards the termination of medical treatment

would appear to be limited based on the nature of the proposal. For instance, consider

a proposal that is intended to limit or restricts courts’ power to direct that a patient’s

medical treatment be terminated, such as requiring prove of “clear and convincing

evidence” that a patient would want treatment withdrawn. At first glance, such a

proposal might seem narrowly focused to address just “state action,” as it is limited

to disputed cases that are tried before judges, who, as will be discussed later, are state

actors. However, a relatively small number of disputed cases involving termination

of medical treatment are resolved in court, so it may be difficult to establish a pattern

and history of constitutional violations based only on disputed cases. Thus, it may be

important for purposes of identifying a pattern and history of constitutional violations

to determine if constitutional violations of patient’s rights sometimes occur outside

177

The Court has long held that the Fourteenth Amendment provides that Congress has the

authority to regulate states, but not individuals. See Shelley v. Kraemer, 334 U.S. 1, 13

(1948).

178

United States v. Morrison, 529 U.S. 598 (2000).

179

529 U.S. at 619-620.

180

521 U.S. at 526.

181

529 U.S. at 626.

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of the courtroom.182 The first, step to this process would be identifying likely scenarios

outside the courtroom where state actors would be involved in these decisions.183

It may also be important, for purposes of congruence and proportionality, to

identify any state actors who are involved in these disputed cases apart from the

judges, since it can be argued that under Morrison, directing a legislative fix against

non-state actors is not congruent and proportionate if these actors are not the source

of constitutional violations. Arguably, in the hypothetical proposal, the burden of

proving a case by clear and convincing evidence will fall upon a patient, health proxy,

of guardian. If none of these parties are state actors, however, then it might be argued

that they are inappropriate targets for such legislation.

a. State Action.

In Morrison, the Court found a voluminous congressional record of bias based

on state actions regarding the investigation and prosecution of criminal sex offenses,

suggesting the state activities may have been in violation of the 14th Amendment.

However, unlike the criminal cases that were at issue in Morrison, most termination

of medical treatment decisions are not initiated by the state, nor are they generally

resolved in a courtroom. Thus, the question arises as to whether the Congress can rely

on possible abuses in the termination of medical treatment outside the courtroom to

justify the exercise of its 14th Amendment authority, despite the fact that the medical

treatment or the termination of such treatment is generally initiated by designated

proxies or appointed guardians.

One typical scenario that can be analyzed is where a health proxy or guardian

seeks to have treatment withheld from a patient who is being treated in a private

hospital or hospice.184 Private parties can sometimes be state actors if: 1) their actions

rely on governmental assistance and benefits, 2) if the actor is performing a traditional

governmental function, and 3) if the injury caused is aggravated in a unique way by

182

Where the right at issue is a fundamental right, the court has allowed the introduction of

evidence related to discrimination involving that right in different contexts. Tennessee v.

Lane, 541 U.S. 509, 528-529 (2004)(considering evidence of unconstitutional discrimination

against persons with disabilities in the provision of public services in evaluating

discrimination in access to the courts). Although it is unclear that the right to direct medical

treatment is a fundamental right, an argument might be made that procedural due process

rights, which are implicated by the instant proposal, fall more closely into that category.

183

When the rights of a “suspect ”class are at issue, which are protected by a higher

standard of scrutiny than rational basis, then the Court appears to have been willing to

consider a broader array of examples of unconstitutional discrimination, even if they did not

involve state action. Nevada Dep't of Human Res. v. Hibbs, 538 U.S. 721, 730-35 (2003)

(allowing consideration of the practices of private-sector employers and the federal

government). However, it does not appear that any court has found that incapacitated

patients are considered a “suspect” class.

184

Of course, in some instances, state actors can be involved in these decisions. For instance,

if a state hospital sought to remove nutrition and hydration from a patient over whom it had

guardianship, there would clearly be state action.

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the incidents of governmental authority.185 It does not appear, however, that this

standard would be met by any of the typical parties in a decision to withhold medical

treatment. Consider, for instance, a health proxy authorized by a patient to make

medical decisions. While the parameters of this relationship are certainly amenable

to regulation by state law, the decision to appoint a guardian with certain powers

would be the act of the patient, and not of the state. Further, the proxy can generally

direct the withdrawal of medical treatment without going to court, and it does not

appear that the proxy would be performing a traditional governmental function in

doing so. Finally, whatever “injury” might be at issue, it does not appear to be

aggravated by the incidents of governmental authority. Since no indicia of

governmental interest would appear to be present here, a health proxy would not

appear to qualify as a state actor.

A closer question is the constitutional status of a guardian who was appointed,

not by the patient, but by a court. For instance, courts have held that the appointment

of a guardian is state action, and must comply with the dictates of procedural due

process.186 Thus, the parameters of the appointment process by a state would appear

amenable to constitutional challenges, or legislative oversight by the Congress.

However, once a guardian has been appointed, most courts have held that since a

guardian’s legal obligation is to represent the interests of their ward, that the guardian

is not a state actor, and thus is only bound by statutory, not constitutional

constraints.187

The next question is whether state action arises if a health proxy, guardian or

other party initiates a legal proceeding regarding the termination of medical treatment.

It is certainly the case that the behavior of a judge in a case is state action for purposes

of due process.188 Or, a suit brought by a private party in a court room may give rise

to state action, if judicial enforcement of the ruling is seen to be in violation of the

constitutional rights of another.189 However, in a typical proceeding to terminate

medical treatment for an incompetent patient, it is unlikely that state action would be

185

Edmonson v. Leesville Concrete Co., 500 U.S. 614, 622-32 (1991).

186

In re Guardianship of L.W., 167 Wis. 2d 53 (1992) (“Due process . . . is accorded

through the guardianship appointment procedures.”).

187

Polk County v. Dodson, 454 U.S. 312 (1981) (dismissing 42 U.S.C. § 1983 suit by a

convict for lack of state action because a public defender acted in an adversarial manner to

the state); Taylor v. First Wyoming Bank, 707 F2d 388 ( 9th Cir. 1983 )(court-appointed

guardian for person declared judicially incompetent did not act under color of state law for

purposes of 42 U.S.C.§ 1983 for placing ward in convalescent home); Meeker v. Kercher,

782 F2d 153 (10th Cir. 1986) (guardian ad litem representing minor in state proceeding on

petition alleging abuse or neglect did not act under color of state law for purposes of 42

U.S.C. § 1983); Clay v. Friedman, 541 F. Supp. 500, 503 (N.D. Ill. 1982) (“In all critical

respects, the role of the guardian ad litem is almost identical to that of a public defender. He

or she is a fiduciary who must act in the minor's best interest.”).

188

For instance, it is a violation of due process for a biased or partial judge to preside over

a trial. Mayberry v. Pennsylvania, 400 U.S. 455 (1971); Tumey v. Ohio, 273 U.S. 510

(1927).

189

Shelley v. Kraemer, 334 U.S. 1 (1948) (judicial enforcement of racially restrictive

covenant found to be violation of 14th Amendment).

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ascribed to a health proxy seeking to terminate treatment, since it is the patient’s

decision to have that person speak for them. Nor, as noted earlier, would the behavior

of even an appointed guardian in a court room typically be found to be state action,

unless it was determined that the guardian was acting in collusion with the

government.190 Generally, only actions by private parties opposing the exercise of a

patient’s right to pursue termination of medical treatment would be amenable to such

an analysis.191

Thus, it would appear that the only state actor in the court room in these cases

would be the judge (although, as noted, certain opposing parties may also take on this

character based on judicial enforcement of their legal positions). As noted, § 5 of the

14th Amendment can only be exercised if Congress can establish a pattern and history

of constitutional violations. Since only state actors can violate the constitution, this

determination would seem to be limited to instances in which the rights of

incapacitated patients are being violated in the courtroom by a judge or opposing

parties.

The next step in evaluating where there is a history and pattern of constitutional

violations would be determining which constitutional rights these state actors are most

likely to have violated. In termination of medical treatment cases, the principal

constitutional right at issue is the right to direct one’s medical treatment. Thus, under

this constitutional theory, establishing a basis for exercise of Congress’ power under

the 14th Amendment would appear to require establishing a record of state judges

disregarding an individual’s expressed wishes regarding medical treatment, whether

based on the petition of the patient or in response to the request of opposing parties.192

In the alternative, one might consider the patient’s right to procedural due process in

proceeding regarding termination of medical treatment, and whether such due process

rights have been respected by courts.

b. Substantive Due Process Rights of Incapacitated Patients.

The number of reported court decisions regarding the termination of medical

treatment, appears to number in the low hundreds.193 And, despite the existence of

190

Thomas S. v. Morrow, 781 F2d 367 (4th Cir. 1986), cert. denied, 476 U.S. 1124 (1986)

and 476 US 1124 (1986) (guardian appointed by state for incompetent adult acted under

color of state law where he acted together with and obtained significant aid from state

officials). “[I]n most civil cases, the initial decision whether to sue at all, the selection of

counsel, and any number of ensuing tactical choices in the course of discovery and trial may

be without the requisite governmental character to be deemed state action.” Edmonson v.

Leesville Concrete Co., 500 U.S. 614, 627-28.

191

Thus, for instance, if state law authorized a parent to countermand a decision to terminate

medical treatment of an adult patient, an argument might be made that the parent was

imbued with the authority of a state actor. See Shelley v. Kramer, 334 U.S. 1 (1948).

192

Since the legal position of opposing parties only becomes state action upon enforcement

by the courts, the following analysis will focus on the court as a state actor.

193

See John D. Hodson, Judicial Power to Order Discontinuance of Life-sustaining

Treatment, 48 A.L.R.4th 67 (2005); Kristine Cordier Karnezis, Patient's Right to Refuse

(continued...)

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some high profile cases where the subjective intent of patient was disputed, such as

the Theresa Schiavo case,194 it is not clear that a significant number of these cases

involved seriously disputed testimony or other evidence. Thus, for Congress to

establish a record of constitutional violations by judges in these cases, it would need

to be shown that the courts disregarded the expressed intent of the patient in some

significant number of cases.

It may, however, be difficult, at least based on reported decisions, to establish

numerous examples of past constitutional violations arising from court orders

directing medical treatment be terminated. For instance, a review of these cases does

not reveal instances where a court rejected clearly expressed intentions, such as

written living wills or advance directives. Instead, the cases principally concern

situations where there was some oral or other evidence regarding “subjective intent,”

or where the decision was made based on an “objective intent”standard, evaluating the

best interests of the patient.195

There is no case law indicating that application of either a “subjective intent”

standard or an “objective intent” standard is, on its face, a violation of the 14th

Amendment. Thus, it would appear that, in order for Congress to establish that a

significant number of patients’ rights to direct their medical treatment under the 14th

Amendment were being violated, it would need to establish that the factual decisions

in some portion of these cases were disputed, and that various courts’ evidentiary

conclusions were incorrect. It may be difficult, however, for Congress to establish that

a significant number of persons’ wishes were disregarded where no written directives

were left, since even the courts sitting in these cases generally have a difficult time

discerning a person’s intent.

Even if Congress could establish that there is a pattern and history of courts

disregarding the wishes of patients, then a court would need to determine whether the

hypothetical proposal would be a congruent and proportionate to the problem.

Limiting or restricting the ability of a court to order termination of medical treatment

would appear to have the effect of increasing the chance that a person’s desire to have

medical treatment continued would be honored. However, the legislation would also

appear to have the negative effect of burdening the right to direct that medical

treatment be discontinued. In order to justify this disparity, Congress might need to

establish a record that the courts evaluating such cases are more inclined to incorrectly

ascertain the intent of incompetent patients who wish for the continuation of such

treatment than they are of patients who wish for termination. Further, the fact that this

burden falls on a private party (the patient as represented by the health proxy or

guardian) rather than on a state actor may, under Morrison, also detract from the

193

(...continued)

Treatment Allegedly Necessary to Sustain Life, 93 A.L.R.3d 67 (2005).

194

See (name redacted),

195

See text accompanying notes 153-164, supra.

The Schiavo Case: Legal Issues, CRS Report RL32830.

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argument that the legislation is congruent and proportional to constitutional

violations.196

c. Procedural Due Process Rights Not to be Deprived of Life, Liberty

or Property.

As noted above, an alternative argument has been made that cases involving the

termination of medical treatment should not be decided based solely on a patient’s

substantive due process right to direct their medical treatment, but should also be

characterized as involving a right not to be deprived of life by the state without due

process of law.197 Under this argument, to the extent that a guardian is seeking a

particular course of medical treatment, and to the extent that the case is being

entertained in the court system, such a course of action must be done in accord with

due process. Further, the argument can be made that Congress, using its § 5 authority,

can act to ensure that due process rights are protected.

Although the Supreme Court has often addressed the requirements of due process

as regards deprivation of “liberty or property,” there is little case law relating to the

requirements of due process as it relates to the deprivation of “life” in the civil

context.198 For instance, the argument might be made that the hypothetical proposal

is consistent with due process requirements, since it requires a more careful analysis

of a course of action which may lead to death. In other circumstances, the Court has

mandated higher levels of standard of proof based on the importance of the underlying

right at issue.199 For instance, the Court has mandated an evidentiary burden of “clear

and convincing” be met where individual interests at stake in a state proceeding are

196

Thus, while federal court review of state termination of medical treatment cases under

prevailing state standards might be seen as directed at states not adequately protecting a

patient’s constitutional rights to direct medical treatment, changing the standard to burden

a patient’s right to withdrawal of medical treatment might not be seen as directed at states.

197

Cruzan, 497 U.S. at 281. See James Bopp, Jr. and Daniel Avila, The Due Process "Right

to Life" in Cruzan and its Impact on "Right-to-die" Law, 53 U. Pitt. L. Rev. 193 (1991). But

see In re Guardianship of L.W., 167 Wis. 2d 53 (1992) “[W]e do not view the withdrawal

of life-sustaining treatment as depriving the patient of life; rather, it ‘allows the disease to

take its natural course’ [cite omitted]. No one can dispute that the withdrawal of treatment,

especially artificial feeding, will result in the death of the patient. However, it is equally

indisputable that the result is the natural death of the body, as contrasted to the unnatural

prolongation of, in this case, a vegetative state. The state does not deprive an individual of

life by failing to ensure that every possible technological medical procedure will be used to

maintain that life.” Id. at 83.

198

Johnny Killian, (name redacted), Kenneth Thomas, T HE UNITED STATES CONSTITUTION:

ANALYSIS AND INTERPRETATION 1800 (2002). In criminal cases, procedural due process

rights regarding the deprivation of life are generally restricted to the context of capital

punishment. Id.

199

"The function of a standard of proof, as that concept is embodied in the Due Process

Clause and in the realm of factfinding, is to “instruct the factfinder concerning the degree

of confidence our society thinks he should have in the correctness of factual conclusions for

a particular type of adjudication." Addington v. Texas, 441 U.S. 418 (1979) (quoting In re

Winship, 397 U.S. 358, 370, (1970) (Harlan, J., concurring)).

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both “particularly important”and “more substantial than mere loss of money."200

Examples of cases where a clear and convincing standard is required include

deportation proceedings,201 denaturalization proceedings,202 civil commitment

proceedings,203 and proceedings for the termination of parental rights.204

It should be noted, however, that the cases in which the Court has held that clear

and convincing evidence is required are generally where governments seek to take

unusual coercive action against an individual.205 The instant proposal, by contrast,

would appear to involve the federal government seeking to protect the due process

interests of an individual against the petition of their guardian or other private party.

The Supreme Court held in Cruzan that a state’s interest in protecting an incapacitated

patient could be the basis for the state to raise the level of evidence of the patient’s

intent. However, it does not appear that any court has held that states are

constitutionally required to raise the standard for withdrawal of medical treatment.

Thus, the question arises as to whether Congress could establish that there is a

pattern and history of incapacitated patients being denied procedural due process

rights so that Congress can legislate a clear and convincing standard under § 5. As

noted previously, state courts currently use a variety of standards in evaluating cases

involving withdrawal of medical treatment, including both subjective intent (decided

by either preponderance of or clear and convincing evidence) and the objective test206

(often associated with a best interest standard). It does not appear, however, that any

court has held that using these standards violates the incompetent patient’s

constitutional rights. Thus, it would appear that Congress would have to establish that

courts have unconstitutionally ignored the procedural due process rights of individuals

in specific cases, thus violating their due process rights. As noted above, it may,

however, be difficult to establish that a significant number of patients’ wishes were

disregarded by a court in cases where no written directives were left.

Finally, courts would need to determine whether the proposal is congruent and

proportional to solving the problem presented by any constitutional violations that are

identified. This may be easier to establish for procedural due process than it would be

for substantive due process, as the tendency of the hypothetical proposal to favor

200

Santosky v. Kramer, 455 U.S. 745, 756, (1982) (quoting Addington, 441 U.S. at 424).

201

Woodby v. INS, 385 U.S. 276, (1966).

202

Schneiderman v. United States, 320 U.S. 118 (1943).

203

Addington v. Texas, 441 U.S. 418 (1979).

204

Santosky v. Kramer, 455 U.S. 745 (1982).

205

Price Waterhouse v. Hopkins, 490 U.S. 228, 253 (1989) (plurality opinion). But see Gertz

v. Robert Welch, Inc., 418 U.S. 323, 342 (1974) (requiring clear and convincing evidence

standard in defamation suits).

206

The fate of the “objective intent” tests after passage of the instant proposal is unclear.

Since the proposal appears to rely exclusively on the subjective intent of the patient,

“objective” decisions, which rely on third party choices, do not appear to fit into this

decision-making scheme. Therefore, the proposal might prohibit courts from considering

any tests except ones based on the expressed desires of the individual.

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continued medical treatment is consistent with the fact that deprivation of life without

due process would only occur where the treatment is withdrawn.

Certainly, to the extent that constitutional violations were shown to exist in the

application of the current standards to particular situations, the raising of the standard

of evidence would make such deprivations more unlikely. On the other hand, a court,

in evaluating the congruence and proportionality of the proposal might also note that

raising the evidentiary standard could lead to more situations where patients’ wishes

to terminate medical treatment were not implemented. In essence, a proposal such as

requiring clear and convincing evidence in order to withdraw treatment would appear

to raise the protection for one constitutional right, while limiting the other. This might

undercut an argument that the constitutional rights of the incapacitated patients were

being protected by the instant proposal.

2. The Commerce Clause.

An alternative constitutional basis for the proposed Act might be the power of

the United States Congress to regulate commerce. As noted above, the United States

Constitution provides that the Congress shall have the power to regulate commerce

with foreign nations and among the various states.207 This power has been cited as the

constitutional basis for a significant portion of the laws passed by the Congress over

the last fifty years, and it currently represents one of the broadest bases for the exercise

of congressional powers.

Starting in 1937, with the decision in NLRB v. Jones & Laughlin Steel

Corporation,208 the Supreme Court held that the Congress has the ability to protect

interstate commerce from burdens and obstructions which “affect” commerce

transactions. In the NLRB case, the court upheld the National Labor Relations Act,

finding that by controlling industrial labor strife, the Congress was preventing burdens

from being placed on interstate commerce.209 Thus, the Court rejected previous

distinctions between the economic activities (such as manufacturing) which led up to

interstate economic transactions, and the interstate transactions themselves. By

allowing Congress to regulate activities which were in the “stream” of commerce, the

Court also set the stage for the regulation of a variety of other activities which “affect”

commerce.

Subsequent Court decisions found that Congress had considerable discretion in

determining which activities “affect” interstate commerce, as long as the legislation

was “reasonably” related to achieving its goals of regulating interstate commerce.210

Thus the Court found that in some cases, events of purely local commerce (such as

local working conditions) might, because of market forces, negatively affect the

207

U.S. Const., Art. I, §8, cl. 3.

208

301 U.S. 1 (1937).

209

301 U.S. at 41.

210

United States v. Darby, 312 U.S. 100 (1941)(approving legislation relating to working

conditions).

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regulation of interstate commerce, and thus would be susceptible to regulation.211 The

Court has also held that an activity which in itself does not affect interstate commerce

could be regulated if all such activities taken together in the aggregate did affect

interstate commerce.212 Under the reasoning of these cases, the Court has upheld

many diverse laws, including laws regulating production of wheat on farms,213 racial

discrimination by businesses,214 and loan-sharking.215

More recent cases have found some limits to these powers. In the 1995 case of

United States v. Lopez,216 the Supreme Court struck down the Gun-Free School Zone

Act of 1990, in which Congress had made it a federal offense for "any individual

knowingly to possess a firearm at a place that the individual knows, or has reasonable

cause to believe, is a school zone."217 The Lopez case was significant in that it was the

first time since 1937 that the Supreme Court struck down a federal statute purely

based on a finding that the Congress had exceeded it powers under the Commerce

Clause.218 In doing so, the Court revisited its prior cases, sorted the commerce power

into three categories, and asserted that Congress could not go beyond these three

categories: 1) regulation of channels of commerce; 2) regulation of instrumentalities

of commerce; and 3) regulation of economic activities which "affect" commerce.219

Within the third category of activities which "affect commerce," the Court

determined that the power to regulate commerce applies to intrastate activities only

when they "substantially" affect commerce.220 Still, the Court in Lopez spoke

approvingly of earlier cases upholding laws which regulated intrastate credit

transactions, restaurants utilizing interstate supplies, and hotels catering to interstate

211

312 U.S. at 121.

212

Wickard v. Filburn, 317 U.S. 111 (1942).

213

Id.

214

See Heart of Atlanta Motel v. United States, 379 U.S. 241 (1964); Katzenbach v.

McClung, 379 U.S. 294 (1964).

215

Perez v. United States, 402 U.S. 146 (1971).

216

514 U.S. 549 (1995).

217

18 U.S.C. §922(q)(1)A).

218

Herman Schwartz, Court Tries to Patrol a Political Line, Legal Times 25 (May 8, 1995).

219

The Court failed to note that to some extent, the three categories are intertwined. For

instance, the first category, the regulation of "streams" or "channels" of commerce, allows

regulation of the creation, movement, sale and consumption of merchandise or services. But

the initial extension of the "streams" of commerce analysis by the Court to intrastate trade

was justified by the "effect" of these other activities on commerce. See NLRB v. Jones &

Laughlin, 301 U.S. 1, 31 (1936). Similarly, the second category, which allows the

regulation of such instrumentalities of commerce as planes, trains or trucks, is also based

on the theory that a threat to these instrumentalities "affects" commerce, even if the effect

is local in nature. Southern Railway Company v. United States, 222 U.S. 21, 26-27

(1911)(regulation of intrastate rail traffic has a substantial effect on interstate rail traffic).

Thus, the final category identified by the Court appears to be a catch-all for all other

activities which "substantially affect" commerce.

220

514 U.S. at 559.

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guests. The Court also recognized that while some intrastate activities may by

themselves have a trivial effect on commerce, regulation of these activities may be

constitutional if their regulation is an essential part of a larger economic regulatory

scheme. Thus, the Court even approved what has been perceived as one of its most

expansive rulings, Wickard v. Filburn, which allowed the regulation of the production

of wheat for home consumption, since the aggregate of the home grown wheat which

was regulated, would have a substantial impact on the market for wheat.221 The Court

has since noted that the aggregation principal has only been applied to regulation of

economic activities.222

Regulation of how hospitals and hospices care for incapacitated patients,

however, would appear to fall easily into the power of Congress to regulate

commerce. The activity, regulation of the care of patients by hospitals, who are

providing such care as a commercial service, would clearly be commercial in nature.223

The care of patients in a hospital involves the use of a significant amount of goods that

travel in interstate commerce224 and most hospitals treat out-of-state patients.225 Since

the activity of running hospitals and hospices are economic in nature, the substantial

effects test can be met by aggregation of these activities by all regulated hospitals.

The argument could be made that Congress has a rational basis to find that regulating

the termination of medical treatment would preserve the integrity of the medical

industry, and consequently the market for such services. Consequently, it would

appear that Congress has significant authority to regulate hospitals and hospices.226

221

Wickard v. Filburn, 317 U.S. 111 (1942).

222

United States v. Morrison, 529 U.S. 598, 613 (2000). The Supreme Court confirmed the

dictates of Lopez in the case of United States v. Morrison. 529 U.S. 598 (2000). In

Morrison, the Court invalidated a portion of the Violence Against Women Act, which

specifically created a private right of action against anyone who committed such a crime,

allowing an injured party to obtain damages and other compensatory relief. 42 U.S.C. §

13981 (2000). Applying its holding in Lopez, the Court concluded that the activity

regulated by the act could not be classified as "economic activity," and therefore the

aggregation principle established by Wickard did not apply.

223

Summit Health, Ltd. v. Pinhas, 500 U.S. 322 (1991) (exclusion of a single physician from

a single hospital affects interstate commerce); Russell v. United States, 471 U.S. 858 (1985)

(arson of a two-unit apartment building affects interstate commerce); Wickard v. Filburn,

317 U.S. 111, (1942) (farmer's consumption of bread baked from own wheat affects

interstate commerce).

224

Heart of Atlanta Motel v. United States, 379 U.S. 241 (1964).

225

Katzenbach v. McClung, 379 U.S. 294 (1964).

226

The Congress has relied on the commerce clause as the basis for significant regulation

of the health care industry. See, e.g. , Health Insurance Portability and Accountability Act

of 1996, 104 Pub. L. 191 (1996), § 195, which finds that

(1) provisions in group health plans and health insurance coverage that impose

certain preexisting condition exclusions impact the ability of employees to seek

employment in interstate commerce, thereby impeding such commerce; (2) health

insurance coverage is commercial in nature and is in and affects interstate

commerce; (3) it is a necessary and proper exercise of Congressional authority

(continued...)

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Thus, for instance, it would appear that Congress would be within its authority

to require that hospitals and hospices, in providing services to incompetent patients,

follow certain standards regarding how such patients are treated. While such power

would still be limited by other constitutional constraints, such as the right to direct

one’s own medical treatment, it would appear that Congress could still regulate within

those constitutional parameters. So, for instance, Congress might have the authority

to require that hospitals or hospices, prior to terminating medical treatment for a

patient, seek a court order showing by clear and convincing evidence that this was this

wish of the patient.

If Congress were to impose such a requirement on hospitals and hospices,

however, the guardians of patients might seek to have those people discharged from

a hospital, and brought home to avoid these restrictions. Thus, the question arises as

to whether such regulation could be extended beyond hospitals and hospices to reach

the actions of private individuals. At first impression, regulation of the health care of

private individuals who are not being cared for in a commercial setting would not be

amenable to federal regulation. Since the activity was not economic, the effects could

not be aggregated, and it would be difficult to show that the economic impact of such

activity had a substantial impact on commerce.

The question could be asked, however, whether regulation of individuals who

sought to terminate medical treatment outside of a hospital or hospice setting could

be reached as a “necessary and proper” part of a larger regulatory scheme. In the case

of Gonzales v. Raich,227 the Court evaluated an “as applied” challenge to the

Controlled Substances Act as regards obtaining, manufacturing or possessing

marijuana for medical purposes. The case was brought by two seriously-ill residents

of California who used marijuana in compliance with the California Compassionate

Use Act of 1996.228 The challenge was based on the argument that the narrow class of

activity being engaged in — the intrastate, noncommercial cultivation and possession

of cannabis for personal medical purposes as recommended by a patient’s physician

pursuant to valid California state law — did not have a substantial impact on

commerce, and thus could not be regulated under the Commerce Clause.229

In upholding the application of the Controlled Substances Act in the Raich case,

the Court relied on its decision in Wickard v. Filburn,230 which held that “even if

appellee’s activity be local and though it may not be regarded as commerce, it may

still, whatever its nature, be reached by Congress if it exerts a substantial economic

226

(...continued)

to impose requirements under this title on group health plans and health

insurance coverage (including coverage offered to individuals previously covered

under group health plans) in order to promote commerce among the States.

227

125 S. Ct. 2195 (2005).

228

Cal. Health & Safety Code Ann §11362.5 (West Supp. 2005) (providing for the legal

possession of medical marijuana by a patient or primary care-giver, upon the written or oral

recommendation of a physician).

229

125 S. Ct. at 2211.

230

317 U.S. 111 (1942).

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effect on interstate commerce.”231 Based on Wickard, the Court in Raich held that

Congress could consider the aggregate effect that allowing the production and

consumption of marijuana for medical purposes would have on the illegal market for

marijuana.232 Of even greater concern was that diversion of marijuana grown for

medicinal purposes for other uses would frustrate the federal interest in eliminating

commercial transactions in the interstate market.233 In both cases, the Court found, the

regulation was within Congress’ commerce power because the Congress had a rational

basis to determine that production of a commodity meant for home consumption, be

it wheat or marijuana, could have a substantial effect on supply and demand. In

addition, since exempting the use of medical marijuana could undercut enforcement

of the Controlled Substances Act, the Court found that the application in this case was

within Congress’ authority to “make all Laws which shall be necessary and proper”234

to effectuate its powers.

The use of the Commerce Clause to regulate an individual or their guardian

seeking to terminate medical care outside of a hospital or hospice setting, however,

is not as clear as it was under Wickard and Raich. Unlike these cases, it is not apparent

that the treatment of patients outside of a medical setting has any significant impact

on the market for medical services. In general, for Congress to regulate an entire

“class of activities,” it must find that the “total incidence” of such practice poses a

threat to a national market.235 Here, Congress could arguably exclude patients outside

of hospital or hospice settings without undercutting the goal of preserving the integrity

of the medical community.

What might be more relevant question is one alluded to by the majority but

directly addressed by Justice Scalia in his concurrence in Raich – to what extent is the

challenged regulation of non-economic activity “necessary and proper” to the larger

economic scheme. In Raich, the fungibility of marijuana served to make regulation of

locally grown marijuana vital to the larger regulatory scheme. In the instant case,

however, if a patient is not in a hospital, it does not appear that the regulation would

have any effect on enforcement of the larger economic scheme. Although Raich held

that Congress need only have a rational basis to discern an economic impact from

non-economic activities, regulation of this activity may even exceed that lenient

231

Id. at 125. The Wickard case upheld the application of the Agricultural Adjustment Act

of 1938, 52 Stat. 31. which was designed to control prices by regulating the volume of wheat

moving in interstate commerce. The Court in Wickard held that the Congress could regulate

not only the wheat sold into commerce, but also wheat retained for consumption on a farm.

Id. at 128-29. The Court did so on the theory that the while the impact of wheat consumed

on the farm on interstate commerce might be trivial, it was significant when combined with

wheat from other farmers similarly situated. Id. at 127.

232

125 S.Ct.. at 2207.

233

Id.

234

U.S. Const., Art. I, § 8.

235

See Perez, 402 U.S. at 154-155 (quoting Westfall v. United States, 274 U.S. 256, 259)

(1927)("[W]hen it is necessary in order to prevent an evil to make the law embrace more

than the precise thing to be prevented it may do so").

CRS-46

standard. Consequently, it would appear that incompetent patients not in a medical

setting might not be amenable to federal regulation.

B. Existing Federal Legislation

1. The Patient Self-Determination Act.

In 1990, Congress passed the Patient Self-Determination Act,236 which requires

that providers of health care service237 under Medicare and Medicaid maintain written

policies and procedures related to Living Wills and other advance directives. The

providers are required to provide written information to all adult patients of their

rights under State law to make decisions about their medical care, including the right

to refuse care and to formulate an advance medical directive. The providers must also

inquire whether a person has executed an advance directive, and ensure compliance

with State law regarding such directives.

2. Assisted Suicide Funding Restriction Act.

In the 105th Congress, the Congress passed the “Assisted Suicide Funding

Restriction Act of 1997,”238 which prohibits the use of federal funds to pay for assisted

suicide. Reminiscent of the Hyde Amendments, which prohibit the use of federal

funds to pay for abortions, this legislation prevents federal monies from being paid for

any goods or services related to assisted suicide, euthanasia or mercy killing. The law

also prevents use of federal funding to support legal advocacy. Although there is no

indication that any federal monies were being used for such purposes, the legislation

appears to be a constitutional exercise of Congress’ spending power to regulate in the

area of the “right to die.”

3. The Controlled Substances Act.

As noted, the state of Oregon allows persons who are terminally ill to seek

assistance in committing suicide if they meet certain criteria.239 In November of 1997,

a Drug Enforcement Agency staff report concluded that prescribing a controlled

substance with the intent of assisting a suicide would not be a legitimate medical

purpose and therefore would violate the Controlled Substances Act (CSA).

Consequently, the Drug Enforcement Agency issued a warning that under the

Controlled Substances Act, doctors could lose their licenses to prescribe drugs if they

helped someone commit suicide. On June 5, 1998, however, the Department of Justice

(DOJ) issued a press release rejecting this conclusion.

The DOJ press release reads, in part, as follows:

236

42 U.S.C. § 1395cc(f).

237

This includes hospitals, nursing homes, home health agencies, hospices, HMOs and other

prepaid organizations.

238

Pub. L. 105-12 (1997).

239

Oregon Rev. Stat. 127.800. § 1.01, et. seq.

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Physicians . . . are authorized to prescribe and distribute scheduled drugs only

pursuant to their registration with the DEA, and the unauthorized distribution of

drugs is generally subject to criminal and administrative action. The relevant

provisions of the CSA provide criminal penalties for physicians who dispense

controlled substances beyond “the course of professional practice,” and provide

for revocation of the DEA drug registrations of physicians who have engaged

either in such criminal conduct or in other “conduct which may threaten the public

health and safety.” Because these terms are not further defined by the statute, we

must look to the purpose of the CSA to understand their scope.

The CSA was intended to keep legally available controlled substances within

lawful channels of distribution and use. It sought to prevent both the trafficking

in these substances for unauthorized purposes and drug abuse. . . . There is no

evidence that Congress, in the CSA, intended to displace the states as the primary

regulators of the medical profession, or to override a state’s determination as to

what constitutes legitimate medical practice in the absence of a federal law

prohibiting that practice. Indeed, the CSA is essentially silent with regard to

regulating the practice of medicine that involves legally available drugs except for

certain specific regulations dealing with the treatment of addicts.

The state of Oregon has reached the considered judgment that physician-assisted

suicide should be authorized under narrow conditions and in compliance with

certain detailed procedures. Under these circumstances, we have concluded that

the CSA does not authorize DEA to prosecute, or to revoke the DEA registration

of, a physician who has assisted in a suicide in compliance with Oregon law. . .

The DOJ press release noted that physicians who dispense controlled substances

beyond “the course of professional practice” may be subject to criminal penalties, and

that those who engage in “conduct which may threaten the public health and safety”

may have their authority to prescribe controlled substances revoked. Although the

press release did not provide citations for these standards, the phrase “the course of

professional practice” may be found in 21 C.F.R. § 1306.04, which provides that:

A prescription for a controlled substance to be effective must be issued for a

legitimate medical purpose by an individual practitioner acting in the usual course

of his professional practice. . . . An order purporting to be a prescription issued

not in the usual course of professional treatment . . . is not a prescription within

the meaning and intent of section 309 of the Act (21 U.S.C. 829) and the person

. . . issuing it shall be subject to the penalties provided for violations of the

provisions of law relating to controlled substances.

Some variation of the other phrase used in the DOJ press release, “conduct which

may threaten public health and safety,” was relevant to two different sections of the

code: 21 U.S.C. §§ 823 and 824. Under § 823, the Attorney General shall “register”

or authorize a physician to prescribe or dispense controlled substances if it is

consistent with the “public interest.” In determining the public interest, a variety of

factors may be considered, including whether such registration is “consistent with the

public health and safety.” Under 21 U.S.C. § 824, a registration “may” be revoked for

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a number of reasons,240 including whether the physician has committed such acts as

would render his registration inconsistent with the “public interest” as evaluated under

factors as defined in § 823(f).241

On November 9, 2001, newly appointed Attorney General John Ashcroft

reversed the DOJ position and issued a Directive indicating that physician assisted

suicide serves no “legitimate medical purpose” under 21 C.F.R. § 1306.04 and that

specific conduct authorized by Oregon’s Death With Dignity Act may “render [a

practitioner’s] registration . . . inconsistent with the public interest” and therefore

subject to possible suspension or revocation.”242 The Directive specifically focused

on health care practitioners in Oregon and instructed the D

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