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Assisted Suicide: The Philosophers’ Brief

Later this year the Supreme Court will decide two cases posing the question whether dying patients have a right to choose death rather than continued pain and suffering.1 We print here the brief filed as amicus curiae in these cases by the group of six moral philosophers listed above, with an introduction by Ronald Dworkin. > —the Editors

Introduction

We cannot be sure, until the Supreme Court decides the assisted suicide cases and its decision is published, how far the justices might have accepted or rejected the arguments of the brief published below.2 In this introduction I shall describe the oral argument before them last January, and offer some suggestions about how, if they decide against the brief’s position, as many commentators now think they will, they might do the least damage to constitutional law. The laws of all but one American state now forbid doctors to prescribe lethal pills for patients who want to kill themselves.3 These cases began when groups of dying patients and their doctors in Washington State and New York each sued asking that these prohibitions be declared unconstitutional so that the patients could be given, when and if they asked for it, medicine to hasten their death. The pleadings described the agony in which the patient plaintiffs were dying, and two federal Circuit Courts of Appeal—the Ninth Circuit in the Washington case and the Second Circuit in the New York case—agreed with the plaintiffs that the Constitution forbids the government from flatly prohibiting doctors to help end such desperate and pointless suffering.4 Washington State and New York appealed these decisions to the Supreme Court, and a total of sixty amicus briefs were filed, including briefs on behalf of the American Medical Association and the United States Catholic Conference urging the Court to reverse the circuit court decisions, and on behalf of the AmericanMedical Students Association and the Gay Men’s Health Crisis urging it to affirm them. The justices’ comments during oral argument persuaded many observers that the Court would reverse the decisions, probably by a lopsided majority. The justices repeatedly cited two versions—one theoretical, the other practical—of the “slippery slope” argument: that it would be impossible to limit a right to assisted suicide in an acceptable way, once that right was recognized. The theoretical version of the argument denies that any principled line can be drawn between cases in which proponents say a right of assisted suicide is appropriate and those in which they concede that it is not. The circuit courts recognized only a right for competent patients already dying in great physical pain to have pills prescribed that they could take themselves. Several justices asked on what grounds the right once granted could be so severely limited. Why should it be denied to dying patients who are so feeble or paralyzed that they cannot take pills themselves and who beg a doctor to inject a lethal drug into them? Or to patients who are not dying but face years of intolerable physical or emotional pain, or crippling paralysis or dependence? But if the right were extended that far, on what ground could it be denied to anyone who had formed a desire to die—to a sixteen-year-old suffering from a severe case of unrequited love, for example?

The philosophers’ brief answers these questions in two steps. First, it defines a very general moral and constitutional principle—that every competent person has the right to make momentous personal decisions which invoke fundamental religious or philosophical convictions about life’s value for himself. Second, it recognizes that people may make such momentous decisions impulsively or out of emotional depression, when their act does not reflect their enduring convictions; and it therefore allows that in some circumstances a state has the constitutional power to override that right in order to protect citizens from mistaken but irrevocable acts of self-destruction. States may be allowed to prevent assisted suicide by people who—it is plausible to think—would later be grateful if they were prevented from dying.

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The most important benefit of legalized assisted suicide for poor patients however, might be better care while they live. For though the medical experts cited in various briefs disagreed sharply about the percentage of terminal cases in which pain can be made tolerable through advanced and expensive palliative techniques, they did not disagree that a great many patients do not receive the relief they could have. The Solicitor General who urged the Court to reverse the lower court judgments conceded in the oral argument that 25 percent of terminally ill patients actually do die in pain. That appalling figure is the result of several factors, including medical ignorance and fear of liability, inadequate hospital funding, and (as the Solicitor General suggested)the failure of insurers and health care programs to cover the cost of special hospice care. Better training in palliative medicine, and legislation requiring such coverage, would obviously improve the situation, but it seems perverse to argue that the patients who would be helped were better pain management available must die horribly because it is not; and, as Justice Breyer pointed out, the number of patients in that situation might well increase as medical costs continue to escalate.

789CaseyCruzan

There are equally serious objections, however, to the second strategy the philosophers’ brief discusses. This strategy concedes a general right to assisted suicide but holds that states have the power to judge that the risks of allowing any exercise of that right are too great. It is obviously dangerous for the Court to allow a state to deny a constitutional right on the ground that the state lacks the will or resource to enforce safeguards if it is exercised, particularly when the case for the practical version of the “slippery slope” objection seems so weak and has been little examined. As Justice Rehnquist, who perhaps favors the first strategy, observed in the oral argument, “[I]f we assume a liberty interest but nevertheless say that, even assuming a liberty interest, a state can prohibit it entirely, that would be rather a conundrum.”10

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Ronald Dworkin
February 27, 1997

THE BRIEF OF THE AMICI CURIAE

Interest of the Amici Curiae

Amici are six moral and political philosophers who differ on many issues of public morality and policy. They are united, however, in their conviction that respect for fundamental principles of liberty and justice, as well as for the American constitutional tradition, requires that the decisions of the Courts of Appeals be affirmed.

Introduction and Summary of Argument

These cases do not invite or require the Court to make moral, ethical, or religious judgments about how people should approach or confront their death or about when it is ethically appropriate to hasten one’s own death or to ask others for help in doing so. On the contrary, they ask the Court to recognize that individuals have a constitutionally protected interest in making those grave judgments for themselves, free from the imposition of any religious or philosophical orthodoxy by court or legislature. States have a constitutionally legitimate interest in protecting individuals from irrational, ill-informed, pressured, or unstable decisions to hasten their own death. To that end, states may regulate and limit the assistance that doctors may give individuals who express a wish to die. But states may not deny people in the position of the patient-plaintiffs in these cases the opportunity to demonstrate, through whatever reasonable procedures the state might institute—even procedures that err on the side of caution—that their decision to die is indeed informed, stable, and fully free. Denying that opportunity to terminally ill patients who are in agonizing pain or otherwise doomed to an existence they regard as intolerable could only be justified on the basis of a religious or ethical conviction about the value or meaning of life itself. Our Constitution forbids government to impose such convictions on its citizens. Petitioners [i.e., the state authorities of Washington and New York] and the amici who support them offer two contradictory arguments. Some deny that the patient-plaintiffs have any constitutionally protected liberty interest in hastening their own deaths. But that liberty interest flows directly from this Court’s previous decisions. It flows from the right of people to make their own decisions about matters “involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy.” Planned Parenthoodv. Casey, 505 U.S. 833, 851 (1992). The Solicitor General, urging reversal in support of Petitioners, recognizes that the patient-plaintiffs do have a constitutional liberty interest at stake in these cases. See Brief for the United States as Amicus Curiae Supporting Petitioners at 12, Washingtonv. Vacco hereinafter Brief for the United States; see also id. at 13 (“Cruzan…supports the conclusion that a liberty interest is at stake in this case.”). The Solicitor General nevertheless argues that Washington and New York properly ignored this profound interest when they required the patient-plaintiffs to live on in circumstances they found intolerable. He argues that a state may simply declare that it is unable to devise a regulatory scheme that would adequately protect pa-tients whose desire to die might be ill-informed or unstable or foolish or not fully free, and that a state may therefore fall back on a blanket prohibition. This Court has never accepted that patently dangerous rationale for denying protection altogether to a conceded fundamental constitutional interest. It would be a serious mistake to do so now. If that rationale were accepted, an interest acknowledged to be constitutionally protected would be rendered empty.

Argument

I. The Liberty Interest Asserted Here is Protected by the Due

Process Clause The Due Process Clause of the Fourteenth Amendment protects the liberty interest asserted by the patient-plaintiffs here. Certain decisions are momentous in their impact on the character of a person’s life—decisions about religious faith, political and moral allegiance, marriage, procreation, and death, for example. Such deeply personal decisions pose controversial questions about how and why human life has value. In a free society, individuals must be allowed to make those decisions for themselves, out of their own faith, conscience, and convictions. This Court has insisted, in a variety of contexts and circumstances, that this great freedom is among those protected by the Due Process Clause as essential to a community of “ordered liberty.” Palko v. Connecticut, 302 U.S. 319, 325 (1937). In its recent decision in Planned Parenthood v. Casey, 505 U.S. 833, 851 (1992), the Court offered a paradigmatic statement of that principle: > matters [] involving the most intimate and personal choices a person may make in a lifetime, choices central to a person’s dignity and autonomy, are central to the liberty protected by the Fourteenth Amendment. That declaration reflects an idea underlying many of our basic constitutional protections.[1.1] As the Court explained in West Virginia State Board of Education v. Barnette, 319 U.S. 624, 642 (1943): > If there is any fixed star in our constitutional constellation, it is that no official…can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein. A person’s interest in following his own convictions at the end of life is so central a part of the more general right to make “intimate and personal choices” for himself that a failure to protect that particular interest would undermine the general right altogether. Death is, for each of us, among the most significant events of life. As the Chief Justice said in Cruzanv. Missouri, 497 U.S. 261, 281(1990), “[t]he choice between life and death is a deeply personal decision of obvious and overwhelming finality.” Most of us see death—whatever we think will follow it—as the final act of life’s drama, and we want that last act to reflect our own convictions, those we have tried to live by, not the convictions of others forced on us in our most vulnerable moment. Different people, of different religious and ethical beliefs, embrace very different convictions about which way of dying confirms and which contradicts the value of their lives. Some fight against death with every weapon their doctors can devise. Others will do nothing to hasten death even if they pray it will come soon. Still others, including the patient-plaintiffs in these cases, want to end their lives when they think that living on, in the only way they can, would disfigure rather than enhance the lives they had created. Some people make the latter choice not just to escape pain. Even if it were possible to eliminate all pain for a dying patient—and frequently that is not possible—that would not end or even much alleviate the anguish some would feel at remaining alive, but intubated, helpless, and often sedated near oblivion. None of these dramatically different attitudes about the meaning of death can be dismissed as irrational. None should be imposed, either by the pressure of doctors or relatives or by the fiat of government, on people who reject it. Just as it would be intolerable for government to dictate that doctors never be permitted to try to keep someone alive as long as possible. when that is what the patient wishes, so it is intolerable for government to dictate that doctors may never, under any circumstances, help someone to die who believes that further life means only degradation. The Constitution insists that people must be free to make these deeply personal decisions for themselves and must not be forced to end their lives in a way that appalls them, just because that is what some majority thinks proper.

  1. 1

    State of Washington et al. v. Glucksberg et al. and Vacco et al. v. Quill et al., argued January 8, 1997.

  2. 2

    Though academic philosophers have been parties to amicus briefs before, as members of organizations or as representing an applied specialty like bioethics, I am unaware of any other occasion on which a group has intervened in Supreme Court litigation solely as general moral philosophers. All the signers to the brief contributed actively to its preparation, though we differ among ourselves about general issues of political philosophy and justice, and may have somewhat different opinions about how states might properly regulate assisted suicide if the principles the brief supports were recognized. We were wonderfully represented, both with the substance of the brief and the administration of its filing, by the Washington and New York law firm of Arnold & Porter, which donated its services and itself bore the considerable printing and administrative expenses. (Anand Agneshwar, Philip H. Curtis, Abe Krash, Janet Meissner Pritchard, Kent A. Yalowitz, and Peter L. Zimroth of that firm were praticularly helpful.)

  3. 3

    The voters of Oregon approved an assisted suicide scheme by referendum in 1994. A federal court held the scheme unconstitutional, but that decision is under appeal. The Netherlands has allowed assisted suicide, in practice, for several years, and there was much disagreement in the various briefs filed in these cases about the lessons to be drawn from the Dutch experience. The Northern Territories of Australia recently adopted legislation legalizing assisted suicide, but legislation to annul that legislation may be introduced in the Australian national Parliament. Switzerland also allows doctor-assisted suicide in highly restricted circumstances. See Seth Mydans, “Legal Euthanasia: Australia Faces a Grim Reality,” The New York Times, February 2, 1997.

  4. 4

    Idescribed the circuit court decisions in an earlier article, “Sex and Death in the Courts,” The New York Review, August 8, 1996.

  5. 5

    Anthony L. Back et al., “Physician-Assisted Suicide and Euthanasia in Washington State,” Journal of the American Medical Association, Volume 275, No. 12, pp. 919, 920, 922 (1996).

  6. 6

    See David J. Doukas et al., “Attitudes and Behaviors on Physician Assisted Death:A Study of Michigan Oncologists,” Clinical Oncology, Volume 13, p. 1055 (1995), and L. Slome et al., “Attitudes Toward Assisted Suicide in AIDS: A Five Year Comparison Study,” conference abstract now available on the World Wide Web (1996). The amicus brief of the Association of Law School Professors offers other statistics to the same effect taken from other states and from nurses.

  7. 7

    According to one respondent’s brief, “Despite some imprecision in the empirical evidence, it has been estimated that between 5 percent and 52 percent of dying patients entering home palliative care units have been terminally sedated.” The brief cites Paul Rousseau, “Terminal Sedation In The Care of Dying Patients,” Archives of Internal Medicine, Volume 156, p. 1785 (1996).

  8. 8

    The amicus brief of the Coalition of Hospice Professionals raised a frightening question about terminal sedation. “Unfortunately, while a terminally sedated patient exhibits an outwardly peaceful appearance, medical science cannot verify that the individual ceases to experience pain and suffering. To the contrary, studies of individuals who have been anaesthetized (with the same kinds of drugs used in terminal sedation) for surgery (and who are in a deeper comatose state than terminally sedated patients since their breathing must be sustained by a respirator) have demonstrated that painful stimuli applied to the patient will cause a significant increase in brain activity, even though there is no external physical response.” See, e.g., Orlando R. Hung et al., “Thiopental Pharmacodynamics:Quantitation of Clinical and Electroencephalographic Depth of Anesthesia,” Anesthesiology, Volume 77, p. 237 (1992).

  9. 9

    BANEC-Generated Guidelines for Comprehensive Care of the Terminally Ill. Bay Area Network of Ethics Committees, September, 1996.

  10. 10

    Justice Scalia, who may also favor the first strategy, then suggested that “[P]roclaiming a liberty interest is cost-free so long as you can proclaim them and then say, however, they can be outweighed by various social policies adopted by the states. We can say there’s a liberty interest in murdering people….”

  11. 11

    See my book, Freedom’s Law (Harvard University Press, 1996), pp. 29-31.

    [1] In Cohenv. California, 403 U.S. 15, 24 (1971), for example, this Court held that the First Amendment guarantee of free speech and expression derives from “the belief that no other approach would comport with the premise of individual dignity and choice upon which our political sys-tem rests.” Interpreting the religion clauses of the First Amendment, this Court has explained that “[t]he victory for freedom of thought recorded in our Bill of Rights recognizes that in the domain of conscience there is a moral power higher than the State.” Girouardv. United States, 328 U.S. 61, 68 (1946). And, in a number of Due Process cases, this Court has protected this conception of autonomy by carving out a sphere of personal family life that is immune from government intrusion. See, e.g., Cleveland Bd. of Educ.v. LeFleur, 414 U.S. 632, 639 (1974) (“This Court has long recognized that freedom of personal choice in matters of marriage and family life is one of the liberties protected by the Due Process Clause of the Fourteenth Amendment.”); Eisenstadtv. Baird, 405 U.S. 438, 453 (1973) (recognizing right “to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision to bear and beget a child”); Skinnerv. Oklahoma, 316 U.S. 535, 541(1942) (holding unconstitutional a state statute requiring the sterilization of individuals convicted of three offenses, in large part because the state’s actions unwarrantedly intruded on marriage and procreation, “one of the basic civil rights of man”); Lovingv. Virginia, 388 U.S. 1, 12 (1967) (striking down the criminal prohibition of interracial marriages as an infringement of the right to marry and holding that “[t]he freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men”).

    These decisions recognize as constitutionally immune from state intrusion that realm in which individuals make “intimate and personal” decisions that define the very character of their lives. See Charles Fried, Right and Wrong 146-47 (1978) (“What a person is, what he wants, the determination of his life plan, of his concept of the good, are the most intimate expressions of self-determination, and by asserting a person’s responsibility for the results of this self-determination, we give substance to the concept of liberty.”).

    [2] In that case, the parents of Nancy Cruzan, a woman who was in a persistent vegetative state following an automobile accident, asked the Missouri courts to authorize doctors to end life support and therefore her life. The Supreme Court held that Missouri was entitled to demand explicit evidence that Ms. Cruzan had made a decision that she would not wish to be kept alive in those circumstances, and to reject the evidence the family had offered as inadequate. But a majority of justices assumed, for the sake of the argument, that a competent patient has a right to reject life-preserving treatment, and it is now widely assumed that the Court would so rule in an appropriate case.

    [3] When state protocols are observed, sometimes the patient is permitted to die and sometimes not. See, e.g., In re Tavel, 661 A.2d 1061 (Del. 1995) (affirming finding that petitioner-daughter had proven by clear and convincing evidence that incompetent patient would want life-support systems removed); In re Martin, 450 Mich. 204, 538 N.W.2d 399 (1995) (holding that wife’s testimony and affidavit did not constitute clear and convincing evidence of incompetent patient’s pre-injury decision to decline life-sustaining medical treatment in patient’s present circumstances); DiGrellav. Elston, 858 S.W.2d 698, 710 (Ky. 1993) (“If the attending physician, the hospital or nursing home ethics committee where the patient resides, and the legal guardian or next of kin all agree and document the patient’s wishes and condition, and if no one disputes their decision, no court order is required to proceed to carry out [an incompetent] patient’s wishes”); Mackv. Mack, 329 Md. 188, 618 A.2d 744 (1993) (holding that wife failed to provide clear and convincing evidence that incompetent husband would want life support removed); In re Doe, 411 Mass. 512, 583 N.E.2d 1263 (applying doctrine of substituted judgment and holding that evidence supported finding that, if incompetent patient were capable of making a choice, she would remove life support).

    [4] For example, 46 percent of California voters supported Proposition 161, which would have legalized physician-assisted suicide, in November 1992. The measure was a proposed amendment to Cal. Penal Code å¤ 401 (1992) which currently makes assisted suicide a felony. Those who did not vote for the measure cited mainly religious reasons or concerns that the proposed law was flawed because it lacked safeguards against abuse and needed more restrictions that might be easily added, such as a waiting period and a psychological examination. Alison C. Hall, To Die With Dignity: Comparing Physician-Assisted Suicide in the United States, Japan, and the Netherlands, 74 Wash. U.L.Q. 803, 817 n.84 (1996).

    [5] In November 1994, Oregon voters approved the Oregon Death With Dignity Act through voter initiative, legalizing physician-assisted suicide under limited circumstances. Oregon Death With Dignity Act, Or. Rev. Stat. å¤å¤ 127.800-.827 (1995). Under the Oregon Act, a capable adult resident of the state, who

    has been determined by the attending physician and consulting physician to be suffering from a terminal disease, and who has voluntarily expressed his or her wish to die, may make a written request for medication for the purpose of ending his life in a human and dignified manner in accordance with [the provisions of the Act].

    Or. Rev. Stat. å¤ 127.805 (1995). The Act provides specific definitions of essential terms such as “incapable” and “terminal disease.” The Act also provides numerous other regulations designed to safeguard the integrity of the process.

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