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