Cheryl K Smith is Legal Services Director, Oregon Rehabilitation Association and was a primary drafter of the Oregon Death With Dignity Act. She has written extensively on death and dying and has been an Honorary Research Associate to VESS since working as Interim Director and Staff Attorney for Hemlock. Here she examines the historic U.S. Judgement that has rocked the movement around the world. How did it reach its conclusions?
Delighting right to die advocates and shocking opponents, on 7 March 1996, the 9th Circuit Federal Court ruled 8-3 that Washington state's law which prohibits "aiding" in suicide violates the US Constitution. This was the first ruling by a federal appeals court in support of physician-assisted suicide. It opens the door for doctors to begin responding to requests from dying patients to help end their suffering. It also may accelerate removal of the injunction that has held up the implementation of Oregon's Death with Dignity Act for the past year and a half.
Although technically confined to the nine states within the 9th Circuit's jurisdiction, the detailed analysis of the arguments at such a high level is sure to reverberate in courts around the world.
Judge Stephen Reinhardt noted in the ruling that the decision applies only to "the prescription of life-ending medication for use by terminally ill, competent adult patients who wish to hasten their deaths." The opinion did not reach the issue of whether physicians may administer such drugs. Despite that, anti-euthanasia campaigners immediately began painting pictures of the involuntary euthanasia of innocents they claim will occur if we allow dying people to "determine the time and manner" of their death.
US District Judge Barbara Rothstein, in 1994, had previously ruled the Washington law unconstitutional, but a three-judge panel of the appeals court had overrruled that decision a year ago in a 2-1 decision. In an unusual turn of events, a majority of the entire appeals court then voted to refer the case to the 11-judge panel for a rehearing, and this ultimately generated the affirmation of Judge Rothstein's original decision.
The well-reasoned and comprehensive majority opinion ( Compassion in Dying v. State of Washington, No. 94-35534), is morethan 100 pages in length. While the decision is significant in itself and is expected to be widely cited throughout the United States, it applies directly only to those states and territories in the 9th Circuit - Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon, Washington, Guam and the Northern Marianas. As a result the decision had no effect on the concurrent trial of Dr. Kevorkian.(1)
In arriving at its holding, the court first had to determine whether a liberty interest in choosing the time and manner of one's death exists, and then to balance that against any state interests. It relied heavily on previous abortion cases to make out a liberty interest, in particular Planned Parenthood v. Casey.(2) Casey characterized the type of liberty interest protected by the Fourteenth Amendment as a matter "involving the most intimate and personal choices a person may make in a lifetime," a choice that is "central to personal dignity and autonomy".(3) This writer believes that to be a very apt description of the right to choose to end one's life when suffering a terminal illness.
Finding a liberty interest
Here we need to examine the technical methods which the court used to navigate through the ethical and legal minefields.
In order to determine whether a liberty interest exists, the court relied on a "substantive due process test", first used in Griswold v. Connecticut, 381 U.S. 479 (1965), a famous contraceptives case.(4) Under such an analysis, interests are seen on a continuum, where "the more important a right or interest, the more persuasive the justifications for infringement" must be.
This is in contrast to what may be referred to as a multi-tiered scrutiny approach, in which interests are first determined to be "fundamental" or "nonfundamental" and then the standard for review is applied. If a right is considered fundamental, the level of review - called "strict scrutiny" - requires that an overriding state interest be "compelling" and "necessary" to achieve the end. In other cases only a rational relationship between the statute and legitimate state interest is required to find the statute constitutional.(5)
The court noted, however, that whether the substantive due process test or the multi-tiered approach is used, the interest in this case clearly rises beyond the level at which the lesser rational basis review is appropriate.
The court goes on to note that previous failure to recognize the existence of a certain liberty interest, or even previous prohibition of its exercise, does not preempt recognitionof its existence. They cite laws previously overturned, including those against interracial marriage and abortion. This parallels the situation with laws against assisted suicide, which currently exist in over half of the states. Clearly, acceptance or prohibition of practices in the past alone is not enough to preempt recognition of a liberty interest relating to those practices in the present.
As part of the inquiry regarding whether the right to assisted suicide is an important liberty interest, the court provides an extensive review of the history of suicide and how it was viewed in various cultures.
Rather than being totally prohibited throughout history, suicide has been considered acceptable, if not honorable, at times. Even when disapproved of, exceptions existed. The most notable exception appears over and over throughout this review - in cases where an individual is suffering from illness. Even while it may have been considered wrong, or resulting from a mental disorder, in most states neither suicide nor attempted suicide has been criminalized since the turn of the century; and no state currently prohibits either by means of statute.
After discussing recent polls that indicate societal approval of suicide or assisted suicide in cases of terminal illness, and comparing the refusal of treatment to assisted suicide, the majority moves its analysis to prior relevant court decisions which were decided between 1925 and the present.
All these cases involved "decisions that are highly personal and intimate, as well of great importance to the individual", and the court correctly noted that "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." They rest their conclusion that "a liberty interest in controlling the time and manner of one's death is a protected by the Due Process Clause of the Fourteenth Amendment", citing two major cases - Planned Parenthood v. Casey, 112 S. Ct. 2791 (1992) and Cruzan v. Director, Missouri Dept. Of Health, 497 U.S. 261 (1990) (this latter was the historic case that lead to the introduction of living will legislation and concerned a woman in persistent vegetative state after a car crash).
The language of Casey, which reasserted the liberty interest of women in obtaining an abortion, is most persuasive in making the case that such decisions are protected by the Due Process Clause:
"These matters, involving the 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 heartof 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."
Although that case was referring to abortion, the language could have easily have been about the right to choose to die. In fact, an arguably stronger case exists in this context, because only the individual whose life it is, not a fetus, is implicated in the decision.
Further supporting the court's contention that such decisions are protected was the Nancy Cruzan case, which dealt with the refusal of unwanted medical treatment. The court concluded 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." Because the intent in both cases is death, with the only difference being that one patient is being maintained by artificial life support and the other not, it logically follows that both would be encompassed by such a liberty interest.
The court goes on to identify six state interests that must be balanced against an individual's liberty interest in controlling the time and manner of his or her death. These include:
A general interest in preserving life
An interest in preventing suicide
An interest in avoiding the involvement of third parties and in precluding the use of arbitrary, unfair, or undue influence
An interest in protecting family members and loved ones
An interest in protecting the integrity of the medical profession
An interest in avoiding adverse consequences that might ensue if the statutory provision at issue is declared unconstitutional.
I will touch on the court's response to some of these issues below.
According to the majority, the state's general interest in preserving life is not always the most important factor, and may vary in strength according to the particular case. The individual's medical condition and his or her wishes are particularly important. The court harkened back to the "living will" statute, which determined that the state's interest in preserving life should give way to the wishes of a competent, terminally ill adult who refuses medical treatment.
As they so aptly put it, "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." They did not, however, rule out the imposition of safeguards on decision making.
In justifying its statute, the state of Washington relied primarily on the argument that its interest in preventing suicide outweighs the interest of a competent, terminally ill individual to commit suicide. The court found this interest a relatively easy obstacle to overcome, by reasoning that "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."
In analyzing the issue of whether physicians should be allowed to assist patients, the court carefully elaborated on the evolving ethical and legal line-drawing that has taken place over the years, and concluded that just as "ordinary" versus "extraordinary" treatment are not valid distinctions, neither is the distinction between "double effect" and physician assisted suicide. In a similar vein, they reasoned (disingenuously perhaps) that just as termination of tube feeding is not to be considered "suicide", neither should "terminally ill patients taking medication prescribed by their doctors" be so labelled.(6)
They also gave credence to the phenomenon well-known to those of us in the right to die movement of dying individuals choosing not to end their lives when they are secure in the knowledge that they have the means to do so if desired.
Avoiding involvement of 3rd parties and undue influence
In discussing these two areas of concern, the court focused mainly on i)the various slippery slope arguments that the dissenting judges found so enticing, ii)the argument that we must first have universal health care, and iii)the claim that physicians will become hardened to death, rejecting them all.
The court rightly noted that "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." Although not mentioned, I would add that knowing your dying loved one is planning to end his or her life with a doctor's assistance is also likely to be much lessshocking and painful than finding the results of a failed or violent suicide.
Protecting the integrity of the medical profession
The court concluded that the integrity of the medical profession is not at risk with lawful physician-assisted suicide for the terminally ill. They noted that the current situation criminalizes attending to the needs of patients and so creates conflict with professionalism, or making criminals of compassionate doctors whom we know are now helping their patients.
Recognizing the right to assisted-suicide would not mandate that doctors do anything contrary to their ethics either, according to the court.
In balancing these interests against the liberty interest, the court first considered the strength of the liberty interest in this case. They found that "when a mentally competent adult is terminally ill, and wishes, free of any coercion, to hasten his death because his remaining days are an unmitigated torture, that person's liberty interest is at its height."
Conversely, the court found that the state interests were "for the most part at a low point" in this case. They also noted that the interests in preventing assisted suicide were "different only in degree and not in kind from its interests in prohibiting a number of other medical practices that lead directly to a terminally ill patient's death."
In applying the balancing test, the judges were convinced, in part, by "specific testimony involving individual patients" (see sidebar), as well as various publicized accounts of individuals who were unable to obtain a doctor's assistance, that the statute was unconstitutionally burdensome. A state may make reasonable regulations to promote the state interests but not make a blanket prohibition.
While not prescribing specific regulations that would pass scrutiny under the Constitution, the majority did refer to the Oregon Death with Dignity Act and other model acts, as well as mentioning a number of procedural safeguards that might be appropriate. These include witnessing, a waiting period, second medical opinion, psychological examinations, and reporting requirements to prevent abuse.
Finally, the court considered the decision in the case of Lee v. State of Oregon, 891 F.Supp. 11429 (D. Or. 1995), which held the Oregon Death with Dignity Act to be unconstitutional. They felt that the reasoning of Judge Hogan was incorrect, noting that it was antithetical to their own reasoning.
Specifically, they stated: "The Oregon District Court's reasoning conflicts squarely with the reasoning of this opinion and the legal conclusions we have reached. Here, we determine that a statute that prohibits doctors from aiding terminally ill persons to hasten their deaths by providing them with prescription medications unconstitutionally burdens the liberty interests of the terminally ill. The benefit we conclude the terminally ill are entitled to receive in this case--the right to physician-assisted suicide--is precisely what Judge Hogan determined to be a burden and thus unlawful. In short, Lee treats a burden as a benefit and a benefit as a burden. In doing so, Judge Hogan clearly erred. Lee not only does not aid us in reaching our decision, it is directly contrary to our holding."
Dissents and other problems
In addition to procedural issues, which I will not discuss here, the three dissenting judges in the case gave a variety of reasons why the Washington state law should not be considered unconstitutional.
These include usurpation of the rights of states to regulate the practice of medicine, a version of the slippery slope argument, a claim that the public disapproves of suicide as evidenced by current laws, and most worrisome, that no fundamental right is implicated, and the abortion cases cited by the majority to justify its use of substantive due process analysis actually reflected the Supreme Court's attempt to abide by previous decisions.
At least one commentator has expresssed concern over the court's use of the substantive due process standard in this case, because it is vague, appears to be based on the values of the judges that made the decision, and is related to an historical abuse of judicial power.(7) While such fears may be valid, another equally valid concern is that if the decision is appealed, the Supreme Court will characterize the right at issue here in such a way as to deem it not fundamental.
In fact, in his dissent Judge Beezer suggests that inquiry in this case should be whether we have a "fundamental right to commit physician-assisted suicide" rather than the right to control the time and manner of one's death identified by the majority.
He also mentions a notoriously wrong-headed opinion by a severely divided Supreme Court in 1986, Bowers v. Hardwick, 478 U.S. 186, as a basis for his conclusions.8 In that case, the court indicated a reluctance to expand the rights that are considered fundamental. In order to be recognized as fundamental, an interest would have to be essential to ordered liberty and be "deeply rooted in history and tradition." Clearly, physician assisted suicide for people with terminal illness would fail the latter test, just as the right to abortion would have failed had the same requirements been applied when Roe v. Wade (the abortion case at the root of current American law on termination) was decided.
Where are we now?
We undoubtedly have not heard the end of the debate on the law of physician-assisted suicide in the United States, despite this historic ruling.
A similar appeal of a negative ruling has been made to the 2nd Circuit District Court in New York and on a similar statute. If that Circuit's ruling conflicts with this one, we can expect the U.S. Supreme Court to settle the issue. In addition, if the Washington Attorney General decides to appeal this case to the Supreme Court, we could potentially see a temporary injunction against physician-assisted suicide as well as a different ruling. As to Oregon's Death with Dignity Act, it has been sent back to Judge Hogan by the 9th Circuit for a rehearing. It, too, may end up with the U.S. Supreme Court.
Two of the nine states covered by the 9th Circuit Court, Nevada and Idaho, have no law against assisted suicide on the books; all the others do. Only one of the states - Oregon - has a statute that regulates physician-assisted suicide for the terminally ill, and it is enjoined from implementation.
Both right to die advocates and opponents now have an opportunity, and even a sense of urgency, to work together to assure that physician-assisted suicide legislation with reasonable regulations and adequate safeguards is passed.
1. Kevorkian's recent acquittal of assisting in the suicides of two people was determined by a jury, rather than a judge, who most likely had no knowledge of the specifics of the 9th circuit decision. Their decision hinged on the fact that the current law in Michigan is confusing, and citizens of that state see Kevorkian as a hero, not a criminal. (The technical term for acquitting a person who is otherwise guilty of a crime is jury nullification.)
2. 112 S.Ct. 2791(1992).
3. Id at 2807.
4. The court noted that recent cases 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."
5. The practical effect of rational review is that virtually any statute will be found constitutional; any state interest will justify the statute. Conversely, characterization of a right as "fundamental" tips the scales in the other direction.
6. This argument is clearly specious, considering the literal meaning of the word "suicide"--the intentional ending of one's own life. If the intent and the act are present it is suicide, albeit rational suicide, regardless of what we choose to call it and regardless of our discomfort with the implications.
7. Prof Charles Baron, private communication, by email.8. In a 5-4 decision, the court found that there was no "fundamental right to engage in homosexual sodomy." Dissenters in that case noted that the right under consideration was actually a "right to be let alone." They believed that neither the fact that religious groups were opposed to the practice nor the fact that laws against it had been in place for a long time were adequate grounds to allow a state to ban it.
The Attorney-General of Washington State lodged an appeal to the US Supreme Court on 25th March against the March 6, l996, decision of the 9th Circuit Appeal Court that the Washington state law forbidding physician-assisted suicide for the terminally ill is unconstitional. (Whether the Supreme Court chooses to take the case remains to be seen, but given its controversial nature it is most likely to.)
Judge Michael Hogan has denied the motion to immediately dismiss his injunction blocking Measure 16 (The Oregon Death With Dignity Act, permitting physician-assisted suicide, approved by voters in l994). Instead he has scheduled a full hearing for April 24 to hear arguments for and against dismissal of the injunction in the Eugene Federal District Court. (The 9th Circuit said on March 6 that his ruling was wrong in law.)