64 USLW 2553, 96 Cal. Daily Op. Serv. 1507, 96 Daily Journal D.A.R. 2639
(CITE AS: 1996 WL 94848 (9TH CIR.(WASH.)))
COMPASSION IN DYING, a Washington nonprofit corporation; Jane Roe; John Doe;
James Poe, Harold Glucksberg, M.D., Plaintiffs-Appellees,
v.
STATE of Washington; Christine Gregoire, Attorney General of Washington,
Defendants-Appellants.
No. 94-35534.
United States Court of Appeals,
Ninth Circuit.
Argued and Submitted December 7, 1994-Seattle, Washington.
Filed March 9, 1995.
Order Granting Rehearing En Banc August 1, 1995.
Argued and Submitted October 26, 1995-San Francisco, California.
Filed March 6, 1996.
Appeal from the United States District Court for the Western District of
Washington Barbara J. Rothstein, Chief District Judge, Presiding
William L. Williams Sr., Assistant Attorney General, Olympia, Washington, for
the defendants-appellants.
Kathyrn L. Tucker (argued), David J. Burman, Thomas L. Boeder, Kari Anne
Smith, Perkins Coie, Seattle, Washington, for the plaintiffs-appellees.
Wesley J. Smith, San Francisco, CA, for amicus curiae International Anti-
Euthanasia Task Force.
Katrin E. Frank, Robert a. Free, Kathleen Wareham, MacDonald, Hoague &
Bayless, Seattle, Washington, for amicus curiae Ten Surviving Family Members.
James Bopp, Jr., Thomas J. Marzen, Daniel Avila, John Altomare, Jane E.T.
Brockman, National Legal Center for the Medically Dependent and Disabled, Inc.,
Indianapolis, Indiana, as amicus curiae.
John R. Reese, Robert A. Lewis, Page R. Barnes, Amy J. Metzler, Holly Morris,
McCuthchen, Doyle, Brown & Enersen, San Francisco, CA, for amicus curiae
Americans for Death with Dignity.
Mary D. Clement, Junction City, OR, for amicus curiae Euthanasia Research &
Guidance Organization.
Mark E. Chopko, Michael F. Moses, Washington, DC, for amicus curiae United
States Catholic Conference.
Paul Benjamin Linton, Clarke D. Forsythe, Americans United for Life, Chicago,
IL, for amici curiae, Washington State Legislators.
Barbara Allan Shickich, Joseph E. Shickich, Jr., Riddell, Williams, Bullitt &
Walkinshaw, Seattle, Washington, for amicus curiae Washington State Hospital
Association and Catholic Health Association of the United States.
Catherine W. Smith, Edwards, Sieh, Wiggins & Hathaway, Seattle, Washington,
for amicus curiae Amici State Legislators.
Todd Maybrown, Allen, Hansen & Maybrown, Seattle, Washington, for amici curiae
the American Civil Liberties Union of Washington, the Northwest Women's Law
Center, Lambda Legal Defense and Education Fund, Inc., AIDS Action Council, the
Northwest AIDS Foundation, the Seattle AIDS Support Group, the Gray Panthers
Project Fund, the Older Women's League, the American Humanist Association, the
National Lawyers Guild, Local 6 of the Service Employees International Union,
Temple De Hirsch Sinai, the Unitarian Universalist Association, the Seattle
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Chapter and the Pacific Northerwest District Council of the Japanese American
Citizens League.
Kirk B. Johnson, Michael L. Ile, David Orentlicher, Jack R. Bierig, Sidley &
Austin, Chicago, IL, Paul E. Kalb, Sidney & Austin, Washington, DC, for amicus
curiae American Medical Association.
Before: JAMES R. BROWNING, PROCTER HUG, JR., MARY M. SCHROEDER, BETTY B.
FLETCHER, HARRY PREGERSON, STEPHEN REINHARDT, ROBERT R. BEEZER, CHARLES
WIGGINS, DAVID R. THOMPSON, FERDINAND F. FERNANDEZ, and ANDREW J. KLEINFELD,
Circuit Judges.
OPINION
REINHARDT, Circuit Judge:
I.
*1 This case raises an extraordinarily important and difficult issue. It
compels us to address questions to which there are no easy or simple answers,
at law or otherwise. It requires us to confront the most basic of human
concerns--the mortality of self and loved ones--and to balance the interest in
preserving human life against the desire to die peacefully and with dignity.
People of good will can and do passionately disagree about the proper result,
perhaps even more intensely than they part ways over the constitutionality of
restricting a woman's right to have an abortion. Heated though the debate may
be, we must determine whether and how the United States Constitution applies to
the controversy before us, a controversy that may touch more people more
profoundly than any other issue the courts will face in the foreseeable future.
Today, we are required to decide whether a person who is terminally ill has a
constitutionally-protected liberty interest in hastening what might otherwise
be a protracted, undignified, and extremely painful death. If such an interest
exists, we must next decide whether or not the state of Washington may
constitutionally restrict its exercise by banning a form of medical assistance
that is frequently requested by terminally ill people who wish to die. We
first conclude that there is a constitutionally-protected liberty interest in
determining the time and manner of one's own death, an interest that must be
weighed against the state's legitimate and countervailing interests, especially
those that relate to the preservation of human life. After balancing the
competing interests, we conclude by answering the narrow question before us:
We hold that insofar as the Washington statute prohibits physicians from
prescribing life-ending medication for use by terminally ill, competent adults
who wish to hasten their own deaths, it violates the Due Process Clause of the
Fourteenth Amendment.
II.
Preliminary Matters and History of the Case
This is the first right-to-die case that this court or any other federal court
of appeals has ever decided. [FN1] The plaintiffs are four physicians who
treat terminally ill patients, three terminally ill patients, and a Washington
non-profit organization called Compassion In Dying. [FN2] The four
physicians--Dr. Harold Glucksberg, Dr. Thomas A. Preston, Dr. Abigail
Halperin, and Dr. Peter Shalit--are respected doctors whose expertise is
recognized by the state. All declare that they periodically treat terminally
ill, competent adults who wish to hasten their deaths with help from their
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physicians. The doctors state that in their professional judgment they should
provide that help but are deterred from doing so by a Washington statute that
makes it a felony to knowingly aid another person to commit suicide.
Under the Washington statute, aiding a person who wishes to end his life
constitutes a criminal act and subjects the aider to the possibility of a
lengthy term of imprisonment, even if the recipient of the aid is a terminally
ill, competent adult and the aider is a licensed physician who is providing
medical assistance at the request of the patient. The Washington statute
provides in pertinent part: "A person is guilty of promoting a suicide when he
knowingly causes or aids another person to attempt suicide." RCW 9A.36.060
(emphasis added). A violation of the statute constitutes a felony punishable
by imprisonment for a maximum of five years and a fine of up to $10,000. RCW
9A.36.060(2) and 9A.20.020(1)(c).
*2 On appeal, the four plaintiff-doctors asserted the rights of terminally
ill, competent adult patients who wished to hasten their deaths with the help
of their physicians so that they might die peacefully and with dignity. That
group included the three patient-plaintiffs. The district court described the
patient-plaintiffs, each of whom desired to obtain prescription drugs to hasten
his death, as follows:
Jane Roe is a 69-year-old retired pediatrician who has suffered since 1988
from cancer which has now metastasized throughout her skeleton. Although she
tried and benefitted temporarily from various treatments including chemotherapy
and radiation, she is now in the terminal phase of her disease. In November
1993, her doctor referred her to hospice care. Only patients with a life
expectancy of less than six months are eligible for such care.
Jane Roe has been almost completely bedridden since June of 1993 and
experiences constant pain, which becomes especially sharp and severe when she
moves. The only medical treatment available to her at this time is medication,
which cannot fully alleviate her pain. In addition, she suffers from swollen
legs, bed sores, poor appetite, nausea and vomiting, impaired vision,
incontinence of bowel, and general weakness.
Jane Roe is mentally competent and wishes to hasten her death by taking
prescribed drugs with the help of Plaintiff Compassion in Dying. In keeping
with the requirements of that organization, she has made three requests for its
members to provide her and her family with counseling, emotional support, and
any necessary ancillary drug assistance at the time she takes the drugs.
John Doe is a 44-year-old artist dying of AIDS. Since his diagnosis in 1991,
he has experienced two bouts of pneumonia, chronic, severe skin and sinus
infections, grand mal seizures and extreme fatigue. He has already lost 70% of
his vision to cytomegalovirus retinitis, a degenerative disease which will
result in blindness and rob him of his ability to paint. His doctor has
indicated that he is in the terminal phase of his illness.
John Doe is especially cognizant of the suffering imposed by a lingering
terminal illness because he was the primary caregiver for his long-term
companion who died of AIDS in June of 1991. He also observed his grandfather's
death from diabetes preceded by multiple amputations as well as loss of vision
and hearing. Mr. Doe is mentally competent, understands there is no cure for
AIDS and wants his physician to prescribe drugs which he can use to hasten his
death.
James Poe is a 69-year-old retired sales representative who suffers from
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emphysema, which causes him a constant sensation of suffocating. He is
connected to an oxygen tank at all times, and takes morphine regularly to calm
the panic reaction associated with his feeling of suffocation. Mr. Poe also
suffers from heart failure related to his pulmonary disease which obstructs the
flow of blood to his extremities and causes severe leg pain. There are no
cures for his pulmonary and cardiac conditions, and he is in the terminal phase
of his illness. Mr. Poe is mentally competent and wishes to commit suicide by
taking physician-prescribed drugs.
*3 Compassion In Dying, 850 F.Supp. at 1456-57.
The names of the patients are pseudonymous in order to protect their privacy.
All three patients died after the case began. Two had died by the time the
District Court issued its decision. See Compassion In Dying v. State of
Washington, 850 F.Supp. 1454, 1456 n. 2 (W.D.Wash.1994). The other died prior
to the date of the decision by the three-judge panel of this court.
Compassion In Dying v. State of Washington, 49 F.3d 586, 588 (9th Cir.1995).
Since the District Court properly granted the physicians standing to assert
the rights of their terminally ill patients in general, 850 F.Supp. at 1467,
it is clear that this case was not rendered moot by the death of the three
named patients. The physicians meet both Article III and jurisprudential
standing requirements. See Singleton v. Wulff, 428 U.S. 106, 116-17
(1976) (holding that doctors had standing to challenge--on behalf of women
patients in general--a Missouri law banning Medicaid reimbursement for
abortions that were not medically required). See also Doe v. Bolton, 410
U.S. 179, 188 (1973) (holding that physicians, asserting the rights of their
patients, have standing to challenge the constitutionality of a criminal
abortion statute even though "the record does not disclose that any one of them
has been prosecuted, or threatened with prosecution, for violation of the
State's abortion statutes"); Planned Parenthood of Cent. Mo. v. Danforth,
428 U.S. 52, 62 (1976) (same). Although there is some ambiguity in Bolton as
to whether the physicians were asserting their own rights or the rights of
their patients, the Court in Singleton, after discussing Griswold v.
Connecticut, 381 U.S. 479 (1965), described Bolton as a case "where the Court
also permitted physicians to assert the rights of their patients." [FN3]
The doctors in Bolton were held to have standing to assert their patients'
rights even though the doctors had never been threatened with prosecution. The
doctors here also meet the standing requirements because they run a severe risk
of prosecution under the Washington statute, which proscribes the very conduct
in which they seek to engage. The state has never indicated that it would not
prosecute doctors who violate that law. See Babbitt v. United Farm Workers
National Union, 442 U.S. 289 (1979) (holding that plaintiff does not have to
risk arrest or prosecution in order to have standing to challenge the
constitutionality of a criminal statute). See also Planned Parenthood of
Cent. Mo., 428 U.S. at 62; Bolton, 410 U.S. at 188 (saying that the
"physician is the one against whom these criminal statutes directly operate"
and that the "physician-appellants, therefore, assert a sufficiently direct
threat of personal detriment .... [and] should not be required to await and
undergo a criminal prosecution as the sole means of seeking relief").
We need not decide whether, the deaths of the three patient-plaintiffs would
negate the ability of their lawyers to continue the challenge that those
patients brought while they were still alive. See Southern Pacific Terminal
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Co. v. ICC, 219 U.S. 498, 515 (1911) (holding a case is not moot when the
controversy is capable of repetition yet evading review). We note, however,
that in invoking the capable-of-repetition-yet-evading-review doctrine in
Roe v. Wade, 410 U.S. 113 (1973), the Court specifically relied, in part, on
the fact that other women would become pregnant. [FN4] The Court said:
*4 [W]hen, as here, pregnancy is a significant fact in the litigation, the
normal 266-day human gestation period is so short that the pregnancy will come
to term before the usual appellate procedure is complete. If that termination
makes a case moot, pregnancy litigation will seldom survive much beyond the
trial stage, and appellate review will be effectively denied. Our law should
not be that rigid. Pregnancy often comes more than once to the same woman, and
in the general population, if man is to survive, it will always be with us.
Roe, 410 U.S. at 125 (emphasis added). So, too, unfortunately, will
terminal illness. [FN5]
The District Court in this case reached only claims asserted by two of the
three categories of plaintiffs: the patients' claims that they had a right to
receive medical assistance from their physicians and the claims that the
physicians asserted on behalf of their patients. It did not address the claim
asserted by Compassion In Dying. Nor, correlatively, did it reach the claim by
the terminally ill patients that they had a right to receive assistance from
organizations such as Compassion In Dying.
Like the District Court, we decide only claims brought by the terminally ill
patients and the doctors. [FN6] We consider those claims to the extent that
they relate to the provision of certain medical assistance to terminally ill
persons by physicians or persons acting pursuant to their authorization or
direction. The claims involving Compassion In Dying are not before us. The
district court suggested that it would reach those additional claims at a later
stage in the proceedings if Compassion In Dying so desired. We have
jurisdiction over this appeal from partial summary judgment because the
district court certified the appeal at the request of both parties under
Federal Rule of Civil Procedure 54(b).
The plaintiffs do not challenge Washington statute RCW 9A.36.060 in its
entirety. Specifically they do not object to the portion of the Washington
statute that makes it unlawful for a person knowingly to cause another to
commit suicide. Rather, they only challenge the statute's "or aids "
provision. They challenge that provision both on its face and as applied to
terminally ill, mentally competent adults who wish to hasten their own deaths
with the help of medication prescribed by their doctors. [FN7] The plaintiffs
contend that the provision impermissibly prevents the exercise by terminally
ill patients of a constitutionally-protected liberty interest in violation of
the Due Process Clause of the Fourteenth Amendment, and also that it
impermissibly distinguishes between similarly situated terminally ill patients
in violation of the Equal Protection Clause.
In an extremely thoughtful opinion, Chief District Judge Barbara Rothstein
held that "a competent, terminally ill adult has a constitutionally guaranteed
right under the Fourteenth Amendment to commit physician-assisted suicide."
850 F.Supp. at 1462. Ruling on cross-motions for summary judgment, the
District Court concluded that the Washington statute places an undue burden on
the exercise of that constitutionally-protected liberty interest. Id. at
1465. The District Court held that the Washington law also violates the Equal
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Protection Clause because it impermissibly treats similarly situated groups of
terminally ill patients differently. Id. at 1467. Although the scope of
the relief the District Judge ordered is not clear, id. 1456, 1459, 1462-1464,
1467, it appears that she declared the statute invalid only insofar as it
applies to the prescription of medication to terminally ill competent adults
who wish to hasten their deaths--or, to use the district court's precise
terminology, only insofar as it applies to "physician-assisted suicide," id.
at 1467. [FN8]
*5 On appeal, a three-judge panel of this court voted 2-1 to reverse the
district court decision. Compassion In Dying v. State of Washington, 49
F.3d 586 (9th Cir.1995). The majority held that there is no due process
liberty interest in physician-assisted suicide. It also concluded that the
Washington statute does not violate the Equal Protection Clause. Accordingly,
the majority held that the statute is not invalid facially or as applied.
Judge Wright dissented and would have held that the statute is invalid as
applied to terminally ill, mentally competent adults because it violates their
privacy and equal protection rights. Id. at 594, 597 (Wright, J.,
dissenting). Because of the extraordinary importance of this case, we decided
to rehear it en banc. Compassion In Dying v. State of Wash., 62 F.3d 299
(9th Cir.1995).
We now affirm the District Court's decision and clarify the scope of the
relief. We hold that the "or aids" provision of Washington statute RCW
9A.36.060, as applied to the prescription of life-ending medication for use by
terminally ill, competent adult patients who wish to hasten their deaths,
violates the Due Process Clause of the Fourteenth Amendment. [FN9]
Accordingly, we need not resolve the question whether that provision, in
conjunction with other Washington laws regulating the treatment of terminally
ill patients, [FN10] also violates the Equal Protection Clause.
III.
Overview of Legal Analysis: Is There a Due Process Violation?
In order to answer the question whether the Washington statute violates the
Due Process Clause insofar as it prohibits the provision of certain medical
assistance to terminally ill, competent adults who wish to hasten their own
deaths, we first determine whether there is a liberty interest in choosing the
time and manner of one's death--a question sometimes phrased in common parlance
as: Is there a right to die? Because we hold that there is, we must then
determine whether prohibiting physicians from prescribing life-ending
medication for use by terminally ill patients who wish to die violates the
patients' due process rights.
The mere recognition of a liberty interest does not mean that a state may not
prohibit the exercise of that interest in particular circumstances, nor does it
mean that a state may not adopt appropriate regulations governing its
exercise. Rather, in cases like the one before us, the courts must apply a
balancing test under which we weigh the individual's liberty interests against
the relevant state interests in order to determine whether the state's actions
are constitutionally permissible. As Chief Justice Rehnquist, writing for the
Court, explained in Cruzan v. Director, Missouri Dept. of Health, 497 U.S.
261 (1990), the only right-to-die case that the Court has heretofore
considered:
[D]etermining that a person has a "liberty interest" under the Due Process
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Clause does not end our inquiry; "whether respondent's constitutional rights
have been violated must be determined by balancing his liberty interests
against the relevant state interests." Youngberg v. Romeo, 457 U.S. 307,
321, 102 S.Ct. 2452, 2461, 73 L.Ed.2d 28, (1982); See also Mills v. Rogers,
457 U.S. 291, 299, 102 S.Ct. 2442, 2448, 73 L.Ed.2d 16 (1982).
*6 Cruzan, 497 U.S. at 279 (footnote omitted).
The Court has invoked a balancing test in a number of substantive due process
cases, not just in the right-to-die context. For example, as the Cruzan
Court noted, the Court applied a balancing test in Youngberg and Mills,
liberty interest cases involving the right to refuse medical treatment.
Youngberg addressed the rights of patients involuntarily committed to state
mental institutions. The Court said: "In determining whether a substantive
right protected by the Due Process Clause has been violated, it is necessary to
balance the liberty of the individual and the demands of organized society."
Youngberg, 457 U.S. at 320 (internal citation and quotation omitted).
Mills addressed the question of the right of mental patients to refuse
treatment with antipsychotic drugs. There, the Court stated explicitly that
the "state interests" are "to be balanced against an individual's liberty
interests." 457 U.S. at 304. As the Cruzan Court also noted, the use of
a balancing test is deeply rooted in our legal traditions. The Court has been
applying a balancing test in substantive due process cases at least since 1905,
when in Jacobsen v. Massachusetts, 197 U.S. 11 (1905), "the Court balanced
an individual's liberty interest in declining an unwanted smallpox vaccine
against the State's interest in preventing disease." Cruzan, 497 U.S. at
278.
As Justice O'Connor explained in her concurring opinion in Cruzan, the
ultimate question is whether sufficient justification exists for the intrusion
by the government into the realm of a person's "liberty, dignity, and
freedom." Cruzan, 497 U.S. at 287, 289 (O'Connor, J., concurring). If the
balance favors the state, then the given statute--whether it regulates the
exercise of a due process liberty interest or prohibits that exercise to some
degree--is constitutional. If the balance favors the individual, then the
statute--whatever its justifications--violates the individual's due process
liberty rights and must be declared unconstitutional, either on its face or as
applied. Here, we conclude unhesitatingly that the balance favors the
individual's liberty interest. [FN11]
IV.
Is There a Liberty Interest?
Before beginning our inquiry into whether a liberty interest exists, we
reiterate a few fundamental precepts that guide us. The first lies in the
Court's cautionary note in Roe v. Wade, 410 U.S. 113, 116 (1973):
We forthwith acknowledge our awareness of the sensitive and emotional nature
of the ... controversy, of the vigorous opposing views, even among physicians,
and of the deep and seemingly absolute convictions that the subject inspires.
One's philosophy, one's experiences, one's exposure to the raw edges of human
existence, one's religious training, one's attitude toward life and family and
their values, and the moral standards one establishes and seeks to observe, are
all likely to influence and to color one's thinking and conclusions....
*7 Like the Roe Court, we endeavor to conduct an objective analysis of a
most emotionally-charged of topics. In doing so, we bear in mind the second
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Justice Harlan's admonition in his now-vindicated dissent in Poe v. Ullman,
367 U.S. 497, 543 (1961) (Harlan, J., dissenting from dismissal on
jurisdictional grounds):
[T]he full scope of the liberty guaranteed by the Due Process Clause cannot
be found in or limited by the precise terms of the specific guarantees
elsewhere in the Constitution. This 'liberty' is not a series of isolated
points pricked out in terms of the taking of property; the freedom of speech,
press, and religion; the right to keep and bear arms; the freedom from
unreasonable searches and seizures; and so on. It is a rational continuum
which, broadly speaking, includes a freedom from all substantial arbitrary
impositions and purposeless restraints, ... and which also recognizes, what a
reasonable and sensitive judgment must, that certain interests require
particularly careful scrutiny of the state needs asserted to justify their
abridgment.
Applying Justice Harlan's teaching, we must strive to resist the natural
judicial impulse to limit our vision to that which can plainly be observed on
the face of the document before us, or even that which we have previously had
the wisdom to recognize.
Most important, we undertake our difficult task with a profound respect for
the noble objectives of the Constitution, as described by Justice Brandeis in
the second most famous dissent in American jurisprudence. [FN12] In
Olmstead v. United States, 277 U.S. 438 (1928), Justice Brandeis wrote, and
his words have since been quoted in full in several opinions of the Court and
in innumerable appellate court decisions:
The makers of our Constitution undertook to secure conditions favorable to
the pursuit of happiness. They recognized the significance of man's spiritual
nature, of his feelings and of his intellect. They knew that only a part of
the pain, pleasure and satisfaction of life are to be found in material
things. They sought to protect Americans in their beliefs, their thoughts,
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.
Id. at 478 (Brandeis, J., dissenting).
In examining whether a liberty interest exists in determining the time and
manner of one's death, we begin with the compelling similarities between RIGHT-
TO-DIE cases and abortion cases. In the former as in the latter, the relative
strength of the competing interests changes as physical, medical, or related
circumstances vary. In RIGHT-TO-DIE cases the outcome of the balancing test
may differ at different points along the life cycle as a person's physical or
medical condition deteriorates, just as in abortion cases the permissibility of
restrictive state legislation may vary with the progression of the pregnancy.
[FN13] Equally important, both types of cases raise issues of life and death,
and both arouse similar religious and moral concerns. Both also present basic
questions about an individual's right of choice.
*8 Historical evidence shows that both abortion and assisted suicide were
for many years condemned, but that the efforts to prevent people from engaging
in the condemned conduct were always at most only partially successful. Even
when prohibited, abortions and assisted-suicides flourished in back alleys, in
small street-side clinics, and in the privacy of the bedroom. Deprived of the
RIGHT to medical assistance, many pregnant women and terminally ill adults
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ultimately took matters into their own hands, often with tragic consequences.
Because they present issues of such profound spiritual importance and because
they so deeply affect individuals' RIGHT to determine their own destiny, the
abortion and RIGHT-TO-DIE cases have given rise to a highly emotional and
divisive debate. In many respects, the legal arguments on both sides are
similar, as are the constitutional principles at issue.
In deciding RIGHT-TO-DIE cases, we are guided by the Court's approach to the
abortion cases. Casey in particular provides a powerful precedent, for in that
case the Court had the opportunity to evaluate its past decisions and to
determine whether to adhere to its original judgment. Although Casey was
influenced by the doctrine of stare decisis, the fundamental message of that
case lies in its statements regarding the type of issue that confronts us
here: "These matters, involving the most intimate and personal choices a
person may make in a lifetime, choices central to personal dignity and
autonomy, are central to the liberty protected by the Fourteenth Amendment."
Casey, 112 S.Ct. at 2807.
A.
Defining the Liberty Interest and Other Relevant Terms
The majority opinion of the three-judge panel that first heard this case on
appeal defined the claimed liberty interest as a "constitutional right to aid
in killing oneself." Compassion In Dying, 49 F.3d at 591 (emphasis added).
However, the subject we must initially examine is not nearly so limited.
Properly analyzed, the first issue to be resolved is whether there is a liberty
interest in determining the time and manner of one's death. We do not ask
simply whether there is a liberty interest in receiving "aid in killing
oneself" because such a narrow interest could not exist in the absence of a
broader and more important underlying interest--the right to die. In short, it
is the end and not the means that defines the liberty interest.
The broader approach we employ in defining the liberty interest is identical
to the approach used by the Supreme Court in the abortion cases. In those
cases, the Court initially determined whether a general liberty interest
existed (an interest in having an abortion), not whether there was an interest
in implementing that general liberty interest by a particular means (with
medical assistance). Specifically, in Roe v. Wade, 410 U.S. 113 (1973), the
Court determined that women had a liberty interest in securing an abortion, not
that women had a liberty interest in obtaining medical assistance for purpose
of an abortion. The Court did so even though the Texas statute at issue did
not prohibit a woman from inducing her own abortion; nor did it criminalize a
woman's conduct in securing an abortion. Rather, the Texas statute, like the
Washington statute here, prohibited the rendering of assistance; specifically,
the Texas statute prohibited only assisting a woman to secure an abortion.
Roe, 410 U.S. at 151-52. The Court first determined that a woman had a
constitutional right to choose an abortion. Only after it did so, did it
proceed to the second step: to determine whether the state's prohibition on
assistance unconstitutionally restricted the exercise of that liberty
interest. Similarly, in Planned Parenthood v. Casey, 112 S.Ct. 2791 (1992),
the Court first reaffirmed, after extensive analysis, its earlier holding that
women have a liberty interest in obtaining an abortion. In determining the
existence of that liberty interest, the Court did not address the subject of
spousal notification. As in Roe, only after affirming a woman's right to have
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an abortion, did the Court proceed to the second step: to examine whether the
statutory provision requiring married women to notify their spouses prior to
obtaining an abortion posed an undue burden on the exercise of that liberty
interest. In this case, our analysis is necessarily the same. First we must
determine whether there is a liberty interest in determining the time and
manner of one's death; if so, we must then examine whether Washington's ban on
assisted suicide unconstitutionally restricts the exercise of that liberty
interest.
*9 While some people refer to the liberty interest implicated in RIGHT-TO-
DIE cases as a liberty interest in committing suicide, we do not describe it
that way. We use the broader and more accurate terms, "the RIGHT to DIE,"
"determining the time and manner of one's death," and "hastening one's death"
for an important reason. The liberty interest we examine encompasses a whole
range of acts that are generally not considered to constitute "suicide."
Included within the liberty interest we examine, is for example, the act of
refusing or terminating unwanted medical treatment. As we discuss later at pp.
3179-3180, a competent adult has a liberty interest in refusing to be connected
to a respirator or in being disconnected from one, even if he is terminally ill
and cannot live without mechanical assistance. The law does not classify the
death of a patient that results from the granting of his wish to decline or
discontinue treatment as "suicide." Nor does the law label the acts of those
who help the patient carry out that wish, whether by physically disconnecting
the respirator or by removing an intravenous tube, as assistance in suicide.
Accordingly, we believe that the broader terms--"the right to die,"
"controlling the time and manner of one's death," and "hastening one's death"--
more accurately describe the liberty interest at issue here. Moreover, as we
discuss later, we have serious doubts that the terms "suicide" and "assisted
suicide" are appropriate legal descriptions of the specific conduct at issue
here. See infra 3185-3186.
There is one further definitional matter we should emphasize. Following our
determination regarding the existence of a liberty interest in hastening one's
death, we examine whether the Washington statute unconstitutionally infringes
on that liberty interest. Throughout that examination, we use the term
"physician-assisted suicide," a term that does not appear in the Washington
statute but is frequently employed in legal and medical discussions involving
the type of question before us. For purposes of this opinion, we use
physician-assisted suicide as it is used by the parties and district court and
as it is most frequently used: the prescribing of medication by a physician
for the purpose of enabling a patient to end his life. [FN14] It is only that
conduct that the plaintiffs urge be held constitutionally-protected in this
case. [FN15]
B.
The Legal Standard
There is no litmus test for courts to apply when deciding whether or not a
liberty interest exists under the Due Process Clause. Our decisions involve
difficult judgments regarding the conscience, traditions, and fundamental
tenets of our nation. We must sometimes apply those basic principles in light
of changing values based on shared experience. Other times we must apply them
to new problems arising out of the development and use of new technologies. In
all cases, our analysis of the applicability of the protections of the
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Constitution must be made in light of existing circumstances as well as our
historic traditions.
*10 Historically, the Court has classified "fundamental rights" as those
that are "implicit in the concept of ordered liberty," Palko v. Connecticut,
302 U.S. 319, 325-26 (1937). The Court reasserted this historic standard,
along with an alternative description, in its highly controversial Bowers v.
Hardwick opinion, 478 U.S. 186, 191-92 (1986): [FN16]
Striving to assure itself and the public that announcing rights not readily
identifiable in the Constitution's text involves much more than the imposition
of the Justices' own choice of values on the States and the Federal Government,
the Court has sought to identify the nature of the rights qualifying for
heightened judicial protection. In Palko v. Connecticut, 302 U.S. 319, 325,
326, 82 L.Ed 288, 58 S.Ct. 149 (1937), it was said that this category includes
those fundamental liberties that are "implicit in the concept of ordered
liberty," such that "neither liberty nor justice would exist if [they] were
sacrificed." A different description of fundamental liberties appeared in
Moore v. East Cleveland, 431 U.S. 494, 503, 97 S.Ct. 1932, 1937, 52 L Ed.2d
531 (1977) (opinion of POWELL, J.), where they are characterized as those
liberties that are "deeply rooted in this Nation's history and tradition."
Id. at 503, 97 S.Ct. at 1938 (POWELL, J.).
In recent years, the Court has spoken more frequently of substantive due
process interests than of fundamental due process rights. Compare
Thornburgh v. American Coll. of Obst., 476 U.S. 747, 772 (1986) (describing
"fundamental right" to abortion) and Akron v. Akron Center for Reproductive
Health, Inc., 462 U.S. 416, 420 n. 1 (1983) (same) with Webster v.
Reproductive Health Services, 492 U.S. 490, 520 (1989) (plurality opinion)
(describing women's entitlement to an abortion as a "liberty interest protected
by Due Process Clause"). See also Cruzan, 497 U.S. 2841. The Court has
also recently expressed a strong reluctance to find new fundamental rights.
Collins v. City of Harker Heights, Tex., 112 S.Ct. 1061, 1068 (1992).
The Court's evolving doctrinal approach to substantive due process claims is
consistent with the basic truth enunciated by Justice Harlan and later endorsed
by the Court in Casey: "the full scope of the liberty guaranteed by the Due
Process Clause is a rational continuum which, broadly speaking, includes a
freedom from all substantial arbitrary impositions and purposeless
restraints ..." Casey, 112 S.Ct. at 2806, citing Poe v. Ullman, 367 U.S.
497, 543 (1961) (Harlan, J., dissenting from dismissal on jurisdictional
grounds). [FN17] As Justice Harlan noted, some liberty interests are weightier
than others. Under the Court's traditional jurisprudence, those classified as
fundamental rights cannot be limited except to further a compelling and
narrowly tailored state interest. See Collins, 112 S.Ct. at 1068. Other
important interests, such as the liberty interest in refusing unwanted medical
treatment, are subject to a balancing test that is less restrictive, but
nonetheless requires the state to overcome a substantial hurdle in justifying
any significant impairment.
*11 Recent cases, including Cruzan, suggest that the Court may be
heading towards the formal adoption of the continuum approach, along with a
balancing test, in substantive due process cases generally. If so, there would
no longer be a two-tier or three-tier set of tests that depends on the
classification of the right or interest as fundamental, important, or
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marginal. Instead, the more important the individual's right or interest, the
more persuasive the justifications for infringement would have to be. We see
the evolution in the Court's approach more as a recognition of the
artificiality of the current classification system than as a fundamental change
in the Court's practical approach to specific issues. So long as the liberty
interest is an important one, the state must shoulder the burden of justifying
any significant limitations it seeks to impose. However, we need not predict
the Court's future course in order to decide the case before us. Here, as we
have said, even under the Court's traditional mode of analysis, a balancing
test is applicable.
Nothing in Reno v. Flores, 113 S.Ct. 1439 (1993), the insubstantial reed on
which the dissent rests its case--even though the case was not cited by any of
the parties or any of the eleven amici who filed briefs before this court--
suggests anything to the contrary. In Flores, the Court simply declined to
find a new fundamental right, and repeated its general reluctance to do so.
Id. at 1447. The Court did not, as the dissent implies, purport to
establish a new classification system under which all liberty interests other
than fundamental rights would be subject to rational basis review. Nor did
Flores purport to overrule, or even hint at any desire to modify, the
Court's ninety-year-old practice of using a balancing test in liberty interest
cases that raise important issues of the type before us. In fact, Flores
did not mention Cruzan, Youngberg, Mills, Jacobsen, or any other balancing
case. [FN18] While one might legitimately argue either that the liberty
interest at issue here rises to the level of a fundamental right or that it is
simply an important liberty interest that is subject to a balancing test, one
point is absolutely clear: there can be no legitimate argument that rational
basis review is applicable, and nothing in Flores suggests that it is.
Although in determining the existence of important rights or liberty
interests, the Court examines our history and experience, it has stated on a
number of occasions that the limits of the substantive reach of the Due Process
Clause are not frozen at any point in time. In Casey, the Court said:
"Neither the Bill of Rights nor the specific practices of States at the time of
the adoption of the Fourteenth Amendment marks the outer limits of the
substantive sphere of liberty which the Fourteenth Amendment protects." 112
S.Ct. at 2805. Justice Frankfurter may have put it best when, writing for the
Court in Rochin v. California, 342 U.S. 165, 171-72 (1952), he declared, "To
believe that this judicial exercise of judgment could be avoided by freezing
'due process of law' at some fixed stage in time or thought is to suggest that
the most important aspect of constitutional adjudication is a function for
inanimate machines and not for judges...." Certainly, it would be difficult to
imagine a more felicitous expression of the dynamism of constitutional
interpretation. Thus, while historical analysis plays a useful role in any
attempt to determine whether a claimed right or liberty interest exists,
earlier legislative or judicial recognition of the right or interest is not a
sine qua non.
*12 In Casey, the Court made it clear that the fact that we have
previously failed to acknowledge the existence of a particular liberty interest
or even that we have previously prohibited its exercise is no barrier to
recognizing its existence. In discussing a woman's liberty interest in
securing an abortion, the Casey Court stated that pregnancy involves
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"suffering [that] is too intimate and personal for the State to insist, without
more, upon its own vision of the woman's role, however dominant that vision has
been in the course of our history and culture." Casey, 112 S.Ct. at 2807
(emphasis added).
In contrast to Casey, the majority opinion of the three-judge panel in the
case now before us erroneously concluded that a historical analysis alone is
sufficient basis for rejecting plaintiffs' claim to a substantive liberty
interest or right. Compassion In Dying, 49 F.3d at 591. As explained
below, we believe that the panel's historical account is misguided, but even if
it were indisputably correct, historical evidence alone is not a sufficient
basis for rejecting a claimed liberty interest. [FN19]
Were history our sole guide, the Virginia anti-miscegenation statute that the
Court unanimously overturned in Loving v. Virginia, 388 U.S. 1 (1967), as
violative of substantive due process and the Equal Protection Clause, would
still be in force because such anti-miscegenation laws were commonplace both
when the United States was founded and when the Fourteenth Amendment was
adopted. [FN20] The Court explicitly acknowledged as much [FN*] in Casey,
112 S.Ct. at 2805, in rejecting the view that substantive due process protects
rights or liberties only if they possess a historical pedigree. In Casey,
the Court said:
It is ... tempting ... to suppose that the Due Process Clause protects only
those practices, defined at the most specific level, that were protected
against government interference by other rules of law when the Fourteenth
Amendment was ratified.... But such a view would be inconsistent with our
law. It is a promise of the Constitution that there is a realm of personal
liberty which the government may not enter. We have vindicated this principle
before. Marriage is mentioned nowhere in the Bill of Rights and interracial
marriage was illegal in most States in the 19th century, but the Court was no
doubt correct in finding it to be an aspect of liberty protected against state
interference by the substantive component of the Due Process Clause in
Loving v. Virginia, 388 U.S. 1, 12, 87 S.Ct. 1817, 1824, 18 L.Ed.2d 1010
(1967), (relying, in an opinion for eight Justices, on the Due Process
Clause). Similar examples may be found in Turner v. Safley, 482 U.S. 78,
94-99, 107 S.Ct. 2254, 2265-67, 96 L.Ed.2d 64 (1987) [holding that prisoners
have a constitutionally protected right to marry a civilian or other inmate];
in Carey v. Population Services International, 431 U.S. 678, 684, 686, 97
S.Ct. 2010, 2015-2017, 52 L.Ed.2d 675 (1977) [holding that the state cannot
prohibit the sale of contraceptives to all minors or bar everyone but licensed
pharmacists from selling contraceptives to adults]; in Griswold v.
Connecticut, 381 U.S. 479, 481-82, 85 S.Ct. 1678, 1680-81, 14 L.Ed.2d 510
(1965) [holding that a Connecticut law forbidding the use of contraceptives
unconstitutionally intrudes on the right of marital privacy] ...
*13 Casey, 112 S.Ct. at 2805. Indeed, if historical evidence of
accepted practices at the time the Fourteenth Amendment was enacted were
dispositive, the Court would not only have decided Loving differently, but
it would not have held that women have a right to have an abortion. As the
dissent pointed out in Roe, more than three-quarters of the existing states (at
least 28 out of 37 states), as well as eight territorial legislatures
restricted or prohibited abortions in 1868 when the Fourteenth Amendment was
adopted. Roe, 410 U.S. at 175-76 & n. 1 (Rehnquist, J., dissenting).
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C.
Historical Attitudes Toward Suicide
The majority opinion of the three-judge panel claimed that "a constitutional
right to aid in killing oneself" was "unknown to the past." Compassion In
Dying, 49 F.3d at 591. As we have pointed out at p. 3138, our inquiry is not
so narrow. Nor is our conclusion so facile. The relevant historical record is
far more checkered than the majority would have us believe.
Like the Court in Roe, we begin with ancient attitudes. [FN21] In Greek and
Roman times, far from being universally prohibited, suicide was often
considered commendable in literature, mythology, and practice.
The first of all literary suicides, that of Oedipus' mother, Jocasta, is made
to seem praiseworthy, an honorable way out of an insufferable situation. Homer
records self-murder without comment, as something natural and heroic. The
legends bear him out. Aegeus threw himself into the sea--which therefore bore
his name--when he mistakenly thought his son Theseus had been slain by the
Minotaur.
A. Alvarez, The Background, in Suicide: The Philosophical Issues 18 (M.Pabst
Battin and David J. Mayor, eds.1980). In Athens, as well as the Greek colonies
of Marseilles and Ceos, magistrates kept a supply of hemlock for those who
wished to end their lives. The magistrates even supplied those who wished to
commit suicide with the means to do so.
Whoever no longer wishes to live shall state his reasons to the Senate, and
after having received permission shall abandon life. If your existence is
hateful to you, die; if you are overwhelmed by fate, drink the hemlock. If
you are bowed with grief, abandon life. Let the unhappy man recount his
misfortune, let the magistrate supply him with the remedy, and his wretchedness
will come to an end. [FN22]
While Socrates counseled his disciples against committing suicide, he
willingly drank the hemlock as he was condemned to do, and his example inspired
others to end their lives. Id. at 19. Plato, Socrates' most distinguished
student, believed suicide was often justifiable.
He suggested that if life itself became immoderate, then suicide became a
rational, justifiable act. Painful disease, or intolerable constraint were
sufficient reasons to depart. And this when religious superstitions faded was
philosophic justification enough. Id.
Many contemporaries of Plato were even more inclined to find suicide a
legitimate and acceptable act. In Roe, while surveying the attitudes of the
Greeks toward abortion, the Court stated that "only the Pythagorean school of
philosophers frowned on the related act of suicide," 410 U.S. at 131; it
then noted that the Pythagorean school represented a distinctly minority view.
Id.
*14 The Stoics glorified suicide as an act of pure rational will. [FN23]
Cato, who killed himself to avoid dishonor when Ceasar crushed his military
aspirations, was the most celebrated of the many suicides among the Stoics.
Montaigne wrote of Cato: "This was a man chosen by nature to show the heights
which can be attained by human steadfastness and constancy.... Such courage is
above philosophy."
Like the Greeks, the Romans often considered suicide to be acceptable or even
laudable. [FN24]
To live nobly also meant to die nobly and at the right time. Everything
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depended on a dominant will and a rational choice.
This attitude was reinforced by Roman law.... According to Justinian's
Digest, suicide of a private citizen was not punishable if it was caused by
"impatience of pain or sickness, or by another cause," or by "weariness of
life ... lunacy, or fear of dishonor." Since this covered every rational
cause, all that was left was the utterly irrational suicide "without cause,"
and that was punishable on the grounds that "whoever does not spare himself
would much less spare another." In other words, it was punished because
irrational, not because it was a crime. Id. at 22-23.
The Romans did sometimes punish suicide. Under Roman law, people convicted of
crimes forfeited their property to the Emperor, thereby disinheriting their
heirs. Roman law imposed a special penalty on people who were caught
committing a crime and then committed suicide prior to conviction to avoid
forfeiting the property. To protect the Emperor's interests, the property of
people who committed suicide under such circumstances was forfeited, just as if
they had been convicted of the crime involved. Marzen at 57-58.
The early Christians saw death as an escape from the tribulations of a fallen
existence and as the doorway to heaven. [FN25] "In other words, the more
powerfully the Church instilled in believers the idea that this world was a
vale of tears and sin and temptation, where they waited uneasily until death
released them into eternal glory, the more irresistible the temptation to
suicide became." Id. at 25. The Christian impulse to martyrdom reached its
height with the Donatists, who were so eager to enter into martyrdom that they
were eventually declared heretics. Gibbon, in the Decline and Fall of the
Roman Empire, described them this way:
They sometimes forced their way into courts of justice and compelled the
affrighted judge to give orders for their execution. They frequently stopped
travellers on the public highways and obliged them to inflict the stroke of
martyrdom by promise of a reward, if they consented--and by the threat of
instant death, if they refused to grant so singular a favour. [FN26]
St. Augustine said of the Donatists, "to kill themselves out of respect for
martyrdom is their daily sport." Id. at 27. Prompted in large part by the
utilitarian concern that the rage for suicide would deplete the ranks of
Christians, St. Augustine argued that committing suicide was a "detestable and
damnable wickedness" and was able to help turn the tide of public opinion. Id.
Even staunch opponents of a constitutional right to suicide acknowledge that
"there were many examples of Christian martyrs whose deaths bordered on
suicide, and confusion regarding the distinction between suicide and martyrdom
existed up until the time of St. Augustine (354-430 A.D.)." [FN27]
*15 In 562 A.D., the Council of Braga denied funeral rites to anyone who
killed himself. A little more than a century later, in 693 A.D., the Council
of Toledo declared that anyone who attempted suicide should be excommunicated.
Id. at 27-28. Once established, the Christian view that suicide was in all
cases a sin and crime held sway for 1,000 years until philosophers, poets, and
even some clergymen--Montesquieu, Voltaire, Diderot, Francis Bacon, David Hume,
John Donne, Sir Thomas More, among others [FN28]--began to challenge the all-
encompassing nature of the dominant ideology. In his book Utopia, Sir Thomas
More, who was later canonized by the Roman Catholic Church, strongly supported
the right of the terminally ill to commit suicide and also expressed approval
of the practice of assisting those who wished to hasten their deaths. [FN29]
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Hume argued that a decision by a terminally ill patient to end his life was
often laudable. [FN30] France even enacted a statute legalizing suicide in
1790, primarily as a result of the influence of the nation's leading
philosophers. [FN31]
Suicide was a crime under the English common law, at least in limited
circumstances, probably as early as the thirteenth century. [FN32] Bracton,
incorporating Roman Law as set forth in Justinian's Digest, declared that if
someone commits suicide to avoid conviction of a felony, his property escheats
to his lords. [FN33] Bracton said "[i]t ought to be otherwise if he kills
himself through madness or unwillingness to endure suffering." [FN34] Despite
his general fidelity to Roman law, Bracton did introduce a key innovation:
"[I]f a man slays himself in weariness of life or because he is unwilling to
endure further bodily pain ... he may have a successor, but his movable goods
[personal property] are confiscated. He does not lose his inheritance [real
property], only his movable goods." [FN35] Bracton's innovation was
incorporated into English common law, which has thus treated suicides resulting
from the inability to "endure further bodily pain" with compassion and
understanding ever since a common law scheme was firmly established.
Sir Edward Coke, in his Third Institute published in 1644, held that killing
oneself was an offense and that someone who committed suicide should forfeit
his movable property. But Coke listed an exception for someone who "by the
rage of sickness or infirmity or otherwise," kills himself "while he is not of
compos mentia," or sound mind. [FN36] In eighteenth century England, many and
perhaps most juries compensated for the perceived unfairness of the law by
concluding that anyone who killed himself was necessarily not of sound mind.
[FN37] Thus, although, formally, suicide was long considered a crime under
English common law, in practice it was a crime that was punished leniently, if
at all, because juries frequently used their power to nullify the law.
The traditional English experience was also shaped by the taboos that have
long colored our views of suicide and perhaps still do today. English common
law reflected the ancient fear that the spirit of someone who ended his own
life would return to haunt the living. Accordingly, the traditional practice
was to bury the body at a crossroads--either so the suicide could not find his
way home or so that the frequency of travelers would keep his spirit from
rising. [FN38] As added insurance, a stake was driven through the body.
*16 English attitudes toward suicide, including the tradition of
ignominious burial, carried over to America [FN39] where they subsequently
underwent a transformation. By 1798, six of the 13 original colonies had
abolished all penalties for suicide either by statute or state constitution.
[FN40] There is no evidence that any court ever imposed a punishment for
suicide or attempted suicide under common law in post-revolutionary America.
[FN41] By the time the Fourteenth Amendment was adopted in 1868, suicide was
generally not punishable, and in only nine of the 37 states is it clear that
there were statutes prohibiting assisting suicide. [FN42]
The majority of states have not criminalized suicide or attempted suicide
since the turn of the century. [FN43] The New Jersey Supreme Court declared in
1901 that since suicide was not punishable it should not be considered a
crime. "[A]ll will admit that in some cases it is ethically defensible," the
court said, as when a woman kills herself to escape being raped or "when a man
curtails weeks or months of agony of an incurable disease." Campbell v.
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Supreme Conclave Improved Order Heptasophs, 66 N.J.L. 274, 49 A. 550, 553
(1901). [FN44] Today, no state has a statute prohibiting suicide or attempted
suicide; nor has any state had such a statute for at least 10 years. [FN45] A
majority of states do, however, still have laws on the books against assisting
suicide. [FN46]
D.
Current Societal Attitudes
Clearly the absence of a criminal sanction alone does not show societal
approbation of a practice. Nor is there any evidence that Americans approve of
suicide in general. In recent years, however, there has been increasingly
widespread support for allowing the terminally ill to hasten their deaths and
avoid painful, undignified, and inhumane endings to their lives. Most
Americans simply do not appear to view such acts as constituting suicide, and
there is much support in reason for that conclusion. See infra at pp. 3185-
3186.
Polls have repeatedly shown that a large majority of Americans--sometimes
nearing 90%--fully endorse recent legal changes granting terminally ill
patients, and sometimes their families, the prerogative to accelerate their
death by refusing or terminating treatment. [FN47] Other polls indicate that a
majority of Americans favor doctor-assisted suicide for the terminally ill. In
April, 1990, the Roper Report found that 64% of Americans believed that the
terminally ill should have the right to request and receive physician aid-in-
dying. [FN48] Another national poll, conducted in October 1991, shows that
"nearly two out of three Americans favor doctor-assisted suicide and euthanasia
for terminally ill patients who request it." [FN49] A 1994 Harris poll found
73% of Americans favor legalizing physician-assisted suicide. [FN50] Three
states have held referenda on proposals to allow physicians to help terminally
ill, competent adults commit suicide with somewhat mixed results. In Oregon,
voters approved the carefully-crafted referendum by a margin of 51 to 49
percent in November of 1994. [FN51] In Washington and California where the
measures contained far fewer practical safeguards, they narrowly failed to
pass, each drawing 46 percent of the vote. [FN52] As such referenda indicate,
there is unquestionably growing popular support for permitting doctors to
provide assistance to terminally ill patients who wish to hasten their deaths.
[FN53]
*17 Just as the mere absence of criminal statutes prohibiting suicide or
attempted suicide does not indicate societal approval so the mere presence of
statutes criminalizing assisting in a suicide does not necessarily indicate
societal disapproval. That is especially true when such laws are seldom, if
ever, enforced. There is no reported American case of criminal punishment
being meted out to a doctor for helping a patient hasten his own death. [FN54]
The lack of enforcement of statutes prohibiting assisting a mentally competent,
terminally ill adult to end his own life would appear to reflect widespread
societal disaffection with such laws. [FN55]
Our attitudes toward suicide of the type at issue in this case are better
understood in light of our unwritten history and of technological
developments. Running beneath the official history of legal condemnation of
physician-assisted suicide is a strong undercurrent of a time-honored but
hidden practice of physicians helping terminally ill patients to hasten their
deaths. [FN56] According to a survey by the American Society of Internal
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Medicine, one doctor in five said he had assisted in a patient's suicide.
[FN57] Accounts of doctors who have helped their patients end their lives have
appeared both in professional journals [FN58] and in the daily press. [FN59]
The debate over whether terminally ill patients should have a right to reject
medical treatment or to receive aid from their physicians in hastening their
deaths has taken on a new prominence as a result of a number of developments.
Two hundred years ago when America was founded and more than one hundred years
ago when the Fourteenth Amendment was adopted, Americans died from a slew of
illness and infirmities that killed their victims quickly but today are almost
never fatal in this nation--scarlet fever, cholera, measles, diarrhea,
influenza, pneumonia, gastritis, to name a few. Other diseases that have not
been conquered can now often be controlled for years, if not decades--diseases
such as diabetes, muscular dystrophy, Parkinson's disease, cardiovascular
disease, and certain types of cancer. As a result, Americans are living
longer, and when they finally succumb to illness, lingering longer, either in
great pain or in a stuporous, semi-comatose condition that results from the
infusion of vast amounts of pain killing medications. [FN60] Despite the
marvels of technology, Americans frequently die with less dignity than they did
in the days when ravaging diseases typically ended their lives quickly. AIDS,
which often subjects its victims to a horrifying and drawn-out demise, has also
contributed to the growing number of terminally ill patients who die protracted
and painful deaths.
One result has been a growing movement to restore humanity and dignity to the
process by which Americans die. [FN61] The now recognized right to refuse or
terminate treatment and the emergent right to receive medical assistance in
hastening one's death are inevitable consequences of changes in the causes of
death, advances in medical science, and the development of new technologies.
Both the need and the capability to assist individuals end their lives in peace
and dignity have increased exponentially. [FN62]
E.
Prior Court Decisions
*18 Next we examine previous Court decisions that delineate the boundaries
of substantive due process. We believe that a careful examination of these
decisions demonstrates that there is a strong liberty interest in determining
how and when one's life shall end, and that an explicit recognition of that
interest follows naturally, indeed inevitably, from their reasoning.
The essence of the substantive component of the Due Process Clause is to limit
the ability of the state to intrude into the most important matters of our
lives, at least without substantial justification. [FN63] In a long line of
cases, the Court has carved out certain key moments and decisions in
individuals' lives and placed them beyond the general prohibitory authority of
the state. The Court has recognized that the Fourteenth Amendment affords
constitutional protection to personal decisions relating to marriage, Loving
v. Virginia, 388 U.S. 1 (1967), procreation, Skinner v. Oklahoma, 316 U.S.
535 (1942), family relationships, Prince v. Massachusetts, 321 U.S. 158
(1944), child rearing and education, Pierce v. Society of Sisters, 268 U.S.
510, 534-535 (1925), and intercourse for purposes other than procreation,
Griswold v. Connecticut, 381 U.S. 479 (1965). The Court has recognized the
right of individuals to be free from government interference in deciding
matters as personal as whether to bear or beget a child, Eisenstadt v.
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Baird, 405 U.S. 438 (1972), and whether to continue an unwanted pregnancy to
term, Roe v. Wade, 410 U.S. 113 (1973). [FN64]
A common thread running through these cases is that they involve decisions
that are highly personal and intimate, as well as of great importance to the
individual. [FN65] Certainly, few decisions are more personal, intimate or
important than the decision to end one's life, especially when the reason for
doing so is to avoid excessive and protracted pain. Accordingly, we believe
the cases from Pierce through Roe provide strong general support for our
conclusion that a liberty interest in controlling the time and manner of one's
death is protected by the Due Process Clause of the Fourteenth Amendment.
While the cases we have adverted to lend general support to our conclusion, we
believe that two relatively recent decisions of the Court, Planned
Parenthood v. Casey, 112 S.Ct. 2791 (1992) and Cruzan v. Director, Missouri
Dept. of Health, 497 U.S. 261 (1990), are fully persuasive, and leave little
doubt as to the proper result.
F.
Liberty Interest under Casey
In Casey, the Court surveyed its prior decisions affording "constitutional
protection to personal decisions relating to marriage, procreation,
contraception, family relationships, child rearing, and education", id. at
2807 and then said:
These matters, involving the most intimate and personal choices a person may
make in a lifetime, choices central to personal dignity and autonomy, are
central to the liberty protected by the Fourteenth Amendment. At the heart of
liberty is the right to define one's own concept of existence, of meaning, of
the universe, and of the mystery of human life. Beliefs about these matters
could not define the attributes of personhood were they formed under compulsion
of the State.
*19 Id. at 2807. The district judge in this case found the Court's
reasoning in Casey "highly instructive" and "almost prescriptive" for
determining "what liberty interest may inhere in a terminally ill person's
choice to commit suicide." Compassion In Dying, 850 F.Supp. at 1459. We
agree.
Like the decision of whether or not to have an abortion, the decision how and
when to die is one of "the most intimate and personal choices a person may make
in a lifetime," a choice "central to personal dignity and autonomy." A
competent terminally ill adult, having lived nearly the full measure of his
life, has a strong liberty interest in choosing a dignified and humane death
rather than being reduced at the end of his existence to a childlike state of
helplessness, diapered, sedated, incontinent. How a person dies not only
determines the nature of the final period of his existence, but in many cases,
the enduring memories held by those who love him.
Prohibiting a terminally ill patient from hastening his death may have an even
more profound impact on that person's life than forcing a woman to carry a
pregnancy to term. The case of an AIDS patient treated by Dr. Peter Shalit,
one of the physician-plaintiffs in this case, provides a compelling
illustration. In his declaration, Dr. Shalit described his patient's death
this way:
One patient of mine, whom I will call Smith, a fictitious name, lingered in
the hospital for weeks, his lower body so swollen from oozing Kaposi's lesions
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that he could not walk, his genitals so swollen that he required a catheter to
drain his bladder, his fingers gangrenous from clotted arteries. Patient
Smith's friends stopped visiting him because it gave them nightmares. Patient
Smith's agonies could not be relieved by medication or by the excellent nursing
care he received. Patient Smith begged for assistance in hastening his death.
As his treating doctor, it was my professional opinion that patient Smith was
mentally competent to make a choice with respect to shortening his period of
suffering before inevitable death. I felt that I should accommodate his
request. However, because of the statute, I was unable to assist him and he
died after having been tortured for weeks by the end-phase of his disease.
[FN66]
For such patients, wracked by pain and deprived of all pleasure, a state-
enforced prohibition on hastening their deaths condemns them to unrelieved
misery or torture. Surely, a person's decision whether to endure or avoid such
an existence constitutes one of the most, if not the most, "intimate and
personal choices a person may make in a life-time," a choice that is "central
to personal dignity and autonomy." Casey, 112 S.Ct. at 2807. Surely such a
decision implicates a most vital liberty interest.
G.
Liberty Interest under Cruzan
In Cruzan, the Court considered whether or not there is a constitutionally-
protected, due process liberty interest in terminating unwanted medical
treatment. The Court said that an affirmative answer followed almost
inevitably from its prior decisions holding that patients have a liberty
interest in refusing to submit to specific medical procedures. Those cases
include Jacobsen v. Massachusetts, 197 U.S. 11, 24-30 (1905), in which the
Court balanced an individual's liberty interest in declining an unwanted small
pox vaccine against the State's interest in preventing disease; Washington
v. Harper, 494 U.S. 210, 221-222, in which the Court said: "The forcible
injection of medication into a nonconsenting person's body represents a
substantial interference with that person's liberty"; and Parham v. J.R.,
442 U.S. 584, 600 (1979), in which it said: "[A] child, in common with adults,
has a substantial liberty interest in not being confined unnecessarily for
medical treatment". Writing for a majority that included Justices O'Connor and
Scalia, Chief Justice Rehnquist said that those cases helped answer the first
critical question at issue in Cruzan, stating: "The principle that a
competent person has a constitutionally protected liberty interest in refusing
unwanted medical treatment may be inferred from our prior decisions."
Cruzan, 497 U.S. at 278 (emphasis added). [FN67]
*20 In her concurrence, Justice O'Connor explained that the majority
opinion held (implicitly or otherwise) that a liberty interest in refusing
medical treatment extends to all types of medical treatment from dialysis or
artificial respirators to the provision of food and water by tube or other
artificial means. As Justice O'Connor said: "I agree that a protected liberty
interest in refusing unwanted medical treatment may be inferred from our prior
decisions, and that the refusal of artificial delivery of food and water is
encompassed in that liberty interest." Cruzan, 497 U.S. 261, 287, 287
(O'Connor, J., concurring) (emphasis added).
Justice O'Connor further concluded that under the majority's opinion,
"[r]equiring a competent adult to endure such procedures against her will
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burdens the patient's liberty, dignity, and freedom to determine the course of
her own treatment." Id. at 289 (O'Connor, J., concurring). In the majority
opinion itself, Chief Justice Rehnquist made a similar assertion, writing:
The choice between life and death is a deeply personal decision of obvious
and overwhelming finality. We believe Missouri may legitimately seek to
safeguard the personal element of this choice through the imposition of
heightened evidentiary requirements. It cannot be disputed that the Due
Process Clause protects an interest in life as well as an interest in refusing
life-sustaining medical treatment.
Cruzan, 497 U.S. at 281 (emphasis added).
These passages make it clear that Cruzan stands for the proposition that
there is a due process liberty interest in rejecting unwanted medical
treatment, including the provision of food and water by artificial means.
[FN68] Moreover, the Court majority clearly recognized that granting the
request to remove the tubes through which Cruzan received artificial nutrition
and hydration would lead inexorably to her death. Cruzan, 497 U.S. at 267-
68, 283. [FN69] Accordingly, we conclude that Cruzan, by recognizing a
liberty interest that includes the refusal of artificial provision of life-
sustaining food and water, necessarily recognizes a liberty interest in
hastening one's own death. [FN70]
H.
Summary
Casey and Cruzan provide persuasive evidence that the Constitution
encompasses a due process liberty interest in controlling the time and manner
of one's death--that there is, in short, a constitutionally recognized "right
to die." Our conclusion is strongly influenced by, but not limited to, the
plight of mentally competent, terminally ill adults. We are influenced as well
by the plight of others, such as those whose existence is reduced to a
vegetative state or a permanent and irreversible state of unconsciousness. See
note 68 supra.
Our conclusion that there is a liberty interest in determining the time and
manner of one's death does not mean that there is a concomitant right to
exercise that interest in all circumstances or to do so free from state
regulation. To the contrary, we explicitly recognize that some prohibitory and
regulatory state action is fully consistent with constitutional principles.
*21 In short, finding a liberty interest constitutes a critical first step
toward answering the question before us. The determination that must now be
made is whether the state's attempt to curtail the exercise of that interest is
constitutionally justified.
V.
Relevant Factors and Interests
To determine whether a state action that impairs a liberty interest violates
an individual's substantive due process rights we must identify the factors
relevant to the case at hand, assess the state's interests and the individual's
liberty interest in light of those factors, and then weigh and balance the
competing interests. The relevant factors generally include: 1) the
importance of the various state interests, both in general and in the factual
context of the case; 2) the manner in which those interests are furthered by
the state law or regulation; 3) the importance of the liberty interest, both
in itself and in the context in which it is being exercised; 4) the extent to
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which that interest is burdened by the challenged state action; and, 5) the
consequences of upholding or overturning the statute or regulation.
A.
The State's Interests
We analyze the factors in turn, and begin by considering the first: the
importance of the state's interests. We identify six related state interests
involved in the controversy before us: 1) the state's general interest in
preserving life; 2) the state's more specific interest in preventing suicide;
3) the state's interest in avoiding the involvement of third parties and in
precluding the use of arbitrary, unfair, or undue influence; 4) the state's
interest in protecting family members and loved ones; 5) the state's interest
in protecting the integrity of the medical profession; and, 6) the state's
interest in avoiding adverse consequences that might ensue if the statutory
provision at issue is declared unconstitutional. [FN71]
1. Preserving Life
The state may assert an unqualified interest in preserving life in general.
As the Court said in Cruzan, "we think a State may properly decline to make
judgments about the 'quality' of life that a particular individual may enjoy,
and simply assert an unqualified interest in the preservation of human
life ..." Cruzan, 497 U.S. at 282. Thus, the state may assert its interest
in preserving life in all cases, including those of terminally ill, competent
adults who wish to hasten their deaths.
Although the state's interest in preserving life may be unqualified, and may
be asserted regardless of the quality of the life or lives at issue, that
interest is not always controlling. [FN72] Nor is it of the same strength in
each case. To the contrary, its strength is dependent on relevant
circumstances, including the medical condition and the wishes of the person
whose life is at stake.
Most tellingly, the state of Washington has already decided that its interest
in preserving life should ordinarily give way--at least in the case of
competent, terminally ill adults who are dependent on medical treatment- to the
wishes of the patients. In its Natural Death Act, RCW 70.122.020 et seq.,
Washington permits adults to have "life-sustaining treatment withheld or
withdrawn in instances of a terminal condition or permanent unconsciousness."
RCW 70.122.010. [FN73] In adopting the statute, the Washington legislature
necessarily determined that the state's interest in preserving life is not so
weighty that it ought to thwart the informed desire of a terminally ill,
competent adult to refuse medical treatment.
*22 Not only does Washington law acknowledge that terminally ill and
permanently unconscious adults have a right to refuse life-sustaining
treatment, the statute includes specific legislative findings that appear to
recognize that a due process liberty interest underlies that right. The
statute states:
The legislature finds that adult persons have the fundamental right to
control the decisions relating to the rendering of their own medical care,
including the decision to have life-sustaining procedures withheld or withdrawn
in instances of terminal condition.
The legislature further finds that modern medical technology has made
possible the artificial prolongation of human life beyond natural limits.
The legislature further finds that, in the interest of protecting individual
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autonomy, such prolongation of life for persons with a terminal condition may
cause loss of patient dignity, and unnecessary pain and suffering, while
providing nothing medically necessary or beneficial to the patient.
RCW 70.122.010. [FN74]
The Washington statute permits competent adults to reject life-sustaining
medical treatment in advance by means of living wills and durable powers of
attorney. RCW 70.122.010-030. Even in cases in which the Washington Natural
Death Act does not authorize surrogate decision-making, the Washington Supreme
Court has found that legal guardians may sometimes have life-sustaining
treatment discontinued. In re Guardianship of Grant, 747 P.2d 445
(Wash.1987); In re Colyer, 660 P.2d 738 (Wash.1983). [FN75]
There is nothing unusual about Washington's recognition that the state's
interest in preserving life is not always of the same force and that in some
cases at least other considerations may outweigh the state's. [FN76] More than
40 other states have adopted living will statutes that permit competent adults
to declare by advance directive that they do not wish to be kept alive by
medical treatment in the latter stages of a terminal illness. [FN77] Like
Washington, many states also permit competent adults to determine in advance
that they do not wish any medical treatment should they become permanently and
irreversibly unconscious. [FN78] Also, like Washington, many states allow
patients to delegate decision-making power [FN*]to a surrogate through a
durable power of attorney, health care proxy, or similar device, or permit
courts to appoint surrogate decision-makers. [FN79] Finally, Congress favors
permitting adult patients to refuse life-sustaining treatment by advance
directive and requires hospitals receiving federal financial support to notify
adult patients of their rights to execute such instruments upon admission.
[FN80]
As the laws in state after state demonstrate, even though the protection of
life is one of the state's most important functions, the state's interest is
dramatically diminished if the person it seeks to protect is terminally ill or
permanently comatose and has expressed a wish that he be permitted to die
without further medical treatment (or if a duly appointed representative has
done so on his behalf). When patients are no longer able to pursue liberty or
happiness and do not wish to pursue life, the state's interest in forcing them
to remain alive is clearly less compelling. Thus, while the state may still
seek to prolong the lives of terminally ill or comatose patients or, more
likely, to enact regulations that will safeguard the manner in which decisions
to hasten death are made, the strength of the state's interest is substantially
reduced in such circumstances.
2. Preventing Suicide
a.
*23 While the state's general commitment to the preservation of life
clearly encompasses the prevention of suicide, the state has an even more
particular interest in deterring the taking of one's own life. The fact that
neither Washington nor any other state currently bans suicide, or attempted
suicide, does not mean that the state does not have a valid and important
interest in preventing or discouraging that act.
During the course of this litigation, the state has relied on its interest in
the prevention of suicide as its primary justification for its statute. [FN81]
The state points to statistics concerning the rate of suicide among various age
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groups, particularly the young. Compassion In Dying, 850 F.Supp. at 1464.
As the state notes, in 1991, suicide was the second leading cause of death
after accidents for the age groups 15-19, 20-24, and 25-34 and one of the top
five causes of death for age groups 35-44 and 45-54. [FN82] These figures are
indeed distressing.
Although suicide by teenagers and young adults is especially tragic, the state
has a clear interest in preventing anyone, no matter what age, from taking his
own life in a fit of desperation, depression, or loneliness or as a result of
any other problem, physical or psychological, which can be significantly
ameliorated. Studies show that many suicides are committed by people who are
suffering from treatable mental disorders. Most if not all states provide for
the involuntary commitment of such persons if they are likely to physically
harm themselves. For similar reasons, at least a dozen states allow the use of
nondeadly force to prevent suicide attempts. [FN83]
While the state has a legitimate interest in preventing suicides in general,
that interest, like the state's interest in preserving life, is substantially
diminished in the case of terminally ill, competent adults who wish to die.
[FN84] One of the heartaches of suicide is the senseless loss of a life ended
prematurely. In the case of a terminally ill adult who ends his life in the
final stages of an incurable and painful degenerative disease, in order to
avoid debilitating pain and a humiliating death, the decision to commit suicide
is not senseless, and death does not come too early. [FN85] Unlike "the
depressed twenty-one year old, the romantically devastated twenty-eight year
old, the alcoholic forty-year old," Compassion In Dying, 49 F.3d at 590-91,
or many others who may be inclined to commit suicide, a terminally ill
competent adult cannot be cured. While some people who contemplate suicide can
be restored to a state of physical and mental well-being, terminally ill adults
who wish to die can only be maintained in a debilitated and deteriorating
state, unable to enjoy the presence of family or friends. Not only is the
state's interest in preventing such individuals from hastening their deaths of
comparatively little weight, but its insistence on frustrating their wishes
seems cruel indeed. [FN86] As Kent said in King Lear, when signs of life were
seen in the dying monarch:
*24 Vex not his ghost: O! let him pass; he hate him That would upon the
rack of this tough world Stretch him out longer. [FN87]
b.
The state has explicitly recognized that its interests are frequently
insufficient to override the wishes of competent, terminally ill adult patients
who desire to bring their lives to an end with the assistance of a physician.
Step by step, the state has acknowledged that terminally ill persons are
entitled in a whole variety of circumstances to hasten their deaths, and that
in such cases their physicians may assist in the process. Until relatively
recently, while physicians routinely helped patients to hasten their deaths,
they did so discreetly because almost all such assistance was illegal.
However, beginning about twenty years ago a series of dramatic changes took
place. Each provoked the type of division and debate that surrounds the issue
before us today. Each time the state's interests were ultimately subordinated
to the liberty interests of the individual, in part as a result of legal
actions and in part as a result of a growing recognition by the medical
community and society at large that a more enlightened approach was essential.
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The first major breakthrough occurred when the terminally ill were permitted
to reject medical treatment. [FN88] The line was drawn initially at
extraordinary medical treatment because the distinction between ordinary and
extraordinary treatment appeared to some to offer the courts an objective,
scientific standard that would enable them to recognize the right to refuse
certain medical treatment without also recognizing a right to suicide or
euthanasia. [FN89] That distinction, however, quickly proved unworkable, and
after a while, terminally ill patients were allowed to reject both
extraordinary and ordinary treatment. For a while, rejection of treatment,
often through "do not resuscitate" orders, was permitted, but termination was
not. This dividing line, which rested on the illusory distinction between
commission and omission (or active and passive), also appeared for a short time
to offer a natural point of repose for doctors, patients and the law. However,
it, too, quickly proved untenable, and ultimately patients were allowed both to
refuse and to terminate medical treatment, [FN90] ordinary as well as
extraordinary. Today, many states also allow the terminally ill to order their
physicians to discontinue not just traditional medical treatment but the
artificial provision of life-sustaining food and water, thus permitting the
patients to die by self-starvation. Equally important, today, doctors are
generally permitted to administer death-inducing medication, as long as they
can point to a concomitant pain-relieving purpose.
In light of these drastic changes regarding acceptable medical practices,
opponents of physician-assisted suicide must now explain precisely what it is
about the physician's conduct in assisted suicide cases that distinguishes it
from the conduct that the state has explicitly authorized. The state responds
by urging that physician-assisted suicide is different in kind, not degree,
from the type of physician-life-ending conduct that is now authorized, for
three separate reasons. It argues that "assisted suicide": 1) requires
doctors to play an active role; 2) causes deaths that would not result from
the patient's underlying disease; and 3) requires doctors to provide the
causal agent of patients' deaths.
*25 The distinctions suggested by the state do not individually or
collectively serve to distinguish the medical practices society currently
accepts. The first distinction--the line between commission and omission--is a
distinction without a difference now that patients are permitted not only to
decline all medical treatment, but to instruct their doctors to terminate
whatever treatment, artificial or otherwise, they are receiving. In
disconnecting a respirator, or authorizing its disconnection, a doctor is
unquestionably committing an act; he is taking an active role in bringing
about the patient's death. In fact, there can be no doubt that in such
instances the doctor intends that, as the result of his action, the patient
will die an earlier death than he otherwise would.
Similarly, drawing a distinction on the basis of whether the patient's death
results from an underlying disease no longer has any legitimacy. While the
distinction may once have seemed tenable, at least from a metaphysical
standpoint, it was not based on a valid or practical legal foundation and was
therefore quickly abandoned. When Nancy Cruzan's feeding and hydration tube
was removed, she did not die of an underlying disease. Rather, she was allowed
to starve to death. [FN91] In fact, Ms. Cruzan was not even terminally ill at
the time, but had a life expectancy of 30 years. [FN92] Similarly, when a
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doctor provides a conscious patient with medication to ease his discomfort
while he starves himself to death--a practice that is not only legal but has
been urged as an alternative to assisted suicide [FN93]--the patient does not
die of any underlying ailment. To the contrary, the doctor is helping the
patient end his life by providing medication that makes it possible for the
patient to achieve suicide by starvation.
Nor is the state's third and final distinction valid. Contrary to the state's
assertion, given current medical practices and current medical ethics, it is
not possible to distinguish prohibited from permissible medical conduct on the
basis of whether the medication provided by the doctor will cause the patient's
death. As part of the tradition of administering comfort care, doctors have
been supplying the causal agent of patients' deaths for decades. Physicians
routinely and openly provide medication to terminally ill patients with the
knowledge that it will have a "double effect"--reduce the patient's pain and
hasten his death. [FN94] Such medical treatment is accepted by the medical
profession as meeting its highest ethical standards. [FN95] It commonly takes
the form of putting a patient on an intravenous morphine drip, with full
knowledge that, while such treatment will alleviate his pain, it will also
indubitably hasten his death. [FN96] There can be no doubt, therefore, that
the actual cause of the patient's death is the drug administered by the
physician or by a person acting under his supervision or direction. Thus, the
causation argument is simply "another bridge crossed" in the journey to
vindicate the liberty interests of the terminally ill, and the state's third
distinction has no more force than the other two.
c.
*26 We acknowledge that in some respects a recognition of the legitimacy of
physician-assisted suicide would constitute an additional step beyond what the
courts have previously approved. We also acknowledge that judicial acceptance
of physician-assisted suicide would cause many sincere persons with strong
moral or religious convictions great distress. Nevertheless, we do not believe
that the state's interest in preventing that additional step is significantly
greater than its interest in preventing the other forms of life-ending medical
conduct that doctors now engage in regularly. More specifically, we see
little, if any, difference for constitutional or ethical purposes between
providing medication with a double effect and providing medication with a
single effect, as long as one of the known effects in each case is to hasten
the end of the patient's life. Similarly, we see no ethical or
constitutionally cognizable difference between a doctor's pulling the plug on a
respirator and his prescribing drugs which will permit a terminally ill patient
to end his own life. In fact, some might argue that pulling the plug is a more
culpable and aggressive act on the doctor's part and provides more reason for
criminal prosecution. To us, what matters most is that the death of the
patient is the intended result as surely in one case as in the other. In sum,
we find the state's interests in preventing suicide do not make its interests
substantially stronger here than in cases involving other forms of death-
hastening medical intervention. To the extent that a difference exists, we
conclude that it is one of degree and not of kind.
d.
Moreover, we are doubtful that deaths resulting from terminally ill patients
taking medication prescribed by their doctors should be classified as
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"suicide." Certainly, we see little basis for such a classification when
deaths that result from patients' decisions to terminate life support systems
or to refuse life-sustaining food and water, for example, are not. We believe
that there is a strong argument that a decision by a terminally ill patient to
hasten by medical means a death that is already in process, should not be
classified as suicide. Thus, notwithstanding the generally accepted use of the
term "physician-assisted suicide," we have serious doubt that the state's
interest in preventing suicide is even implicated in this case.
e.
In addition to the state's purported interest in preventing suicide, it has an
additional interest in preventing deaths that occur as a result of errors in
medical or legal judgment. We acknowledge that it is sometimes impossible to
predict with certainty the duration of a terminally ill patient's remaining
existence, just as it is sometimes impossible to say for certain whether a
borderline individual is or is not mentally competent. [FN97] However, we
believe that sufficient safeguards can and will be developed by the state and
medical profession, see infra p. 3204, to ensure that the possibility of error
will ordinarily be remote. Finally, although life and death decisions are of
the gravest order, should an error actually occur it is likely to benefit the
individual by permitting a victim of unmanageable pain and suffering to end his
life peacefully and with dignity at the time he deems most desirable. [FN98]
3. Avoiding the Involvement of Third Parties, and Precluding the Use of
Arbitrary, Unfair, or Undue Influence
a.
*27 A state may properly assert an interest in prohibiting even altruistic
assistance to a person contemplating suicide on the grounds that allowing
others to help may increase the incidence of suicide, undercut society's
commitment to the sanctity of life, and, adversely affect the person providing
the assistance. In addition, joint action is generally considered more serious
than action by a single person. While we recognize that these concerns are
legitimate, the most important--the first two--diminish in importance to the
same extent that the state's interest in preventing the act itself diminishes.
All are at their minimums when the assistance is provided by or under the
supervision or direction of a doctor and the recipient is a terminally ill
patient.
In upholding Washington's statute, the majority of the three-judge panel
relied heavily on the state's interest in preventing the exercise of undue,
arbitrary or unfair influences over the individual's decision to end his
life. Compassion In Dying, 49 F.3d at 592-93. We agree that this is an
important interest, but for entirely different reasons than the majority
suggests. One of the majority's prime arguments is that the statute is
necessary to protect "the poor and minorities from exploitation," 49 F.3d at
592--in other words, to protect the disadvantaged from becoming the victims of
assisted suicide. This rationale simply recycles one of the more disingenuous
and fallacious arguments raised in opposition to the legalization of abortion.
[FN99] It is equally meretricious here. In fact, as with abortion, there is
far more reason to raise the opposite concern: the concern that the poor and
the minorities, who have historically received the least adequate health care,
will not be afforded a fair opportunity to obtain the medical assistance to
which they are entitled--the assistance that would allow them to end their
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lives with a measure of dignity. The argument that disadvantaged persons will
receive more medical services than the remainder of the population in one, and
only one, area--assisted suicide--is ludicrous on its face. So, too, is the
argument that the poor and the minorities will rush to volunteer for physician-
assisted suicide because of their inability to secure adequate medical
treatment.
Our analysis is similar regarding the argument relating to the handicapped.
Again, the opponents of physician-assisted suicide urge a variation of the
discredited anti-abortion argument. Despite the dire predictions, the disabled
were not pressured into seeking abortions. Nor is it likely that the disabled
will be pressured into committing physician-assisted suicide. Organizations
representing the physically impaired are sufficiently active politically and
sufficiently vigilant that they would soon put a halt to any effort to employ
assisted suicide in a manner that affected their clients unfairly. There are
other more subtle concerns, however, advanced by some representatives of the
physically impaired, including the fear that certain physical disabilities will
erroneously be deemed to make life "valueless." While we recognize the
legitimacy of these concerns, we also recognize that seriously impaired
individuals will, along with non-impaired individuals, be the beneficiaries of
the liberty interest asserted here--and that if they are not afforded the
option to control their own fate, they like many others will be compelled,
against their will, to endure unusual and protracted suffering. The resolution
that would be best for all, of course, would be to ensure that the practice of
assisted suicide is conducted fairly and well, and that adequate safeguards
sufficient to avoid the feared abuses are adopted and enforced.
b.
*28 There is a far more serious concern regarding third parties that we
must consider--one not even mentioned by the majority in the panel opinion.
That concern is the fear that infirm, elderly persons will come under undue
pressure to end their lives from callous, financially burdened, or self-
interested relatives, or others who have influence over them. The risk of
undue influence is real--and it exists today. Persons with a stake in the
outcome may now pressure the terminally ill to reject or decline life-saving
treatment or take other steps likely to hasten their demise. Surrogates may
make unfeeling life and death decisions for their incompetent relatives. This
concern deserves serious consideration, as it did when the decision was made
some time ago to permit the termination of life-support systems and the
withdrawal or withholding of other forms of medical treatment, and when it was
decided to recognize living wills, durable powers of attorney, and the right of
courts to appoint substitute decision-makers. While we do not minimize the
concern, the temptation to exert undue pressure is ordinarily tempered to a
substantial degree in the case of the terminally ill by the knowledge that the
person will die shortly in any event. Given the possibility of undue influence
that already exists, the recognition of the right to physician-assisted suicide
would not increase that risk unduly. In fact, the direct involvement of an
impartial and professional third party in the decision-making process would
more likely provide an important safeguard against such abuse.
We also realize that terminally ill patients may well feel pressured to hasten
their deaths, not because of improper conduct by their loved ones, but rather
for an opposite reason--out of concern for the economic welfare of their loved
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ones. Faced with the prospect of astronomical medical bills, terminally ill
patients might decide that it is better for them to die before their health
care expenses consume the life savings they planned to leave for their
families, or, worse yet, burden their families with debts they may never be
able to satisfy. While state regulations can help ensure that patients do not
make rash, uninformed, or ill considered decisions, we are reluctant to say
that, in a society in which the costs of protracted health care can be so
exorbitant, it is improper for competent, terminally ill adults to take the
economic welfare of their families and loved ones into consideration.
Throughout its analysis, the dissent relies heavily on Professor Kamisar, a
long-time, outspoken, and nationally-recognized opponent of assisted-suicide.
Following Professor Kamisar's lead, our dissenting colleagues suggest that the
nation's priorities are misplaced because some of the problems we address
result from the "lack of universal access to medical care." Dissent at 3249.
We would be inclined to agree that the country's refusal to provide universal
health care, and the concomitant suffering so many Americans are forced to
undergo, demonstrates a serious flaw in our national values. One answer, of
course, is that concerns over the absence of decent medical coverage in this
country should be addressed to Congress, which, if it recognizes the values the
dissenters and others espouse, will surely enact the sorely-needed, health-care
legislation it has up to now rejected. As members of the judicial branch,
however, we are compelled to stand aside from that battle. On the other hand,
we are certainly not obligated to pile injury upon injury by holding that all
of our citizens may be subjected to the prospect of needless pain, suffering,
and degradation at the end of their lives, either because of our concern over
Congress' failure to provide government-insured health care or alternatively in
order to satisfy the moral or religious precepts of a portion of the
population.
c.
*29 We are also aware of the concern that doctors become hardened to the
inevitability of death and to the plight of terminally ill patients, and that
they will treat requests to die in a routine and impersonal manner, rather than
affording the careful, thorough, individualized attention that each request
deserves. The day of the family doctor who made house calls and knew the
frailties and strengths of each family member is long gone. So, too, in the
main, is the intense personal interest that doctors used to take in their
patients' welfare and activities. Doctors like the rest of society face
constantly increasing pressures, and may not always have the patience to deal
with the elderly, some of whom can be both difficult and troublesome.
Nevertheless, there are many doctors who specialize in geriatric care and there
are many more who are not specialists but who treat elderly patients with great
compassion and sensitivity. We believe that most, if not all, doctors would
not assist a terminally ill patient to hasten his death as long as there were
any reasonable chance of alleviating the patient's suffering or enabling him to
live under tolerable conditions. We also believe that physicians would not
assist a patient to end his life if there were any significant doubt about the
patient's true wishes. To do so would be contrary to the physicians'
fundamental training, their conservative nature, and the ethics of their
profession. In any case, since doctors are highly-regulated professionals, it
should not be difficult for the state or the profession itself to establish
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rules and procedures that will ensure that the occasional negligent or careless
recommendation by a licensed physician will not result in an uninformed or
erroneous decision by the patient or his family.
Having said all this, we do not dismiss the legitimate concerns that exist
regarding undue influence. While steps can be taken to minimize the danger
substantially, the concerns cannot be wholly eliminated. Accordingly, they are
of more than minimal weight and, in balancing the competing interests, we treat
them seriously.
4. Effect on Children, Other Family Members, and Loved Ones
The state clearly has a legitimate interest in safeguarding the interests of
innocent third parties such as minor children and other family members
dependent on persons who wish to commit suicide. That state interest, however,
is of almost negligible weight when the patient is terminally ill and his death
is imminent and inevitable. The state cannot help a minor child or any other
innocent third party by forcing a terminally ill patient to die a more
protracted and painful death. In fact, witnessing a loved one suffer a slow
and agonizing death as a result of state compulsion is more likely to harm than
further the interests of innocent third parties. [FN100]
5. Protecting the Integrity of the Medical Profession
The state has a legitimate interest in assuring the integrity of the medical
profession, an interest that includes prohibiting physicians from engaging in
conduct that is at odds with their role as healers. [FN101] We do not believe
that the integrity of the medical profession would be threatened in any way by
the vindication of the liberty interest at issue here. Rather, it is the
existence of a statute that criminalizes the provision of medical assistance to
patients in need that could create conflicts with the doctors' professional
obligations and make covert criminals out of honorable, dedicated, and
compassionate individuals.
*30 The assertion that the legalization of physician-assisted suicide will
erode the commitment of doctors to help their patients rests both on an
ignorance of what numbers of doctors have been doing for a considerable time
and on a misunderstanding of the proper function of a physician. As we have
previously noted, doctors have been discreetly helping terminally ill patients
hasten their deaths for decades and probably centuries, while acknowledging
privately that there was no other medical purpose to their actions. They have
done so with the tacit approval of a substantial percentage of both the public
and the medical profession, and without in any way diluting their commitment to
their patients.
In addition, as we also noted earlier, doctors may now openly take actions
that will result in the deaths of their patients. They may terminate life-
support systems, withdraw life-sustaining gastronomy tubes, otherwise terminate
or withhold all other forms of medical treatment, and, may even administer
lethal doses of drugs with full knowledge of their "double effect." [FN102]
Given the similarity between what doctors are now permitted to do and what the
plaintiffs assert they should be permitted to do, we see no risk at all to the
integrity of the profession. This is a conclusion that is shared by a growing
number of doctors who openly support physician-assisted suicide and proclaim it
to be fully compatible with the physicians' calling and with their commitment
and obligation to help the sick. [FN103] Many more doctors support physician-
assisted suicide but without openly advocating a change in the legal treatment
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of the practice. A recent study of Oregon physicians found that 60% of those
who responded believed that physician-assisted suicide should be legal.
[FN104] A recent study of attitudes among physicians in Michigan, where the
state legislature adopted a law banning assisted-suicide as a result of Dr.
Jack Kevorkian's activities, found that only 17.2% of the physicians who
responded favored a law prohibiting assisted-suicide. Almost all the rest
supported one of three options: legalizing physician-assisted suicide
(38.9%); permitting the medical profession to regulate the practice (16.1%);
or leaving decisions about physician-assisted suicide to the doctor-patient
relationship (16.6%). [FN105] Thus over 70% of the Michigan doctors answering
the poll appear to believe that professional ethics do not preclude doctors
from engaging in acts that today are classified as "assisted suicide." Even
among those doctors who oppose assisted suicide medical ethics do not lie at
the heart of the objections. The "most important personal characteristic"
separating those doctors from their colleagues is a strong religious
identification. [FN106]
Whether or not a patient can be cured, the doctor has an obligation to attempt
to alleviate his pain and suffering. If it is impossible to cure the patient
or retard the advance of his disease, then the doctor's primary duty is to make
the patient as comfortable as possible. When performing that task, the doctor
is performing a proper medical function, even though he knows that his
patient's death is a necessary and inevitable consequence of his actions.
[FN107]
*31 As noted earlier, the American Medical Association filed an amicus
brief urging that we uphold the practice of administering medicine with a dual
effect. At the same time, it takes the position that physician-assisted
suicide should not be legalized, at least as of this time. [FN108] Twenty
years ago, the AMA contended that performing abortions violated the Hippocratic
Oath; today, it claims that assisting terminally ill patients to hasten their
death does likewise. Clearly, the Hippocratic Oath can have no greater import
in deciding the constitutionality of physician assisted-suicide than it did in
determining whether women had a constitutional right to have an abortion. In
Ro