II. This Court’s Decisions in Casey and Cruzan Compel
Recognition of a Liberty Interest Here A. Casey Supports the Liberty Interest Asserted Here In Casey, this Court, in holding that a state cannot constitutionally proscribe abortion in all cases, reiterated that the Constitution protects a sphere of autonomy in which individuals must be permitted to make certain decisions for themselves. The Court began its analysis by pointing out that “[a]t 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.” 505 U.S. at 851. Choices flowing out of these conceptions, on 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.” Id. “Beliefs about these matters,” the Court continued, “could not define the attributes of personhood were they formed under compulsion of the State.” Id. In language pertinent to the liberty interest asserted here, the Court explained why decisions about abortion fall within this category of “personal and intimate” decisions. A decision whether or not to have an abortion, “originat[ing] within the zone of conscience and belief,” involves conduct in which “the liberty of the woman is at stake in a sense unique to the human condition and so unique to the law.” Id. at 852. As such, the decision necessarily involves the very “destiny of the woman” and is inevitably “shaped to a large extent on her own conception of her spiritual imperatives and her place in society.” Id. Precisely because of these characteristics of the decision, “the State is [not] entitled to proscribe [abortion] in all instances.” Id. Rather, to allow a total prohibition on abortion would be to permit a state to impose one conception of the meaning and value of human existence on all individuals. This the Constitution forbids. The Solicitor General nevertheless argues that the right to abortion could be supported on grounds other than this autonomy principle, grounds that would not apply here. He argues, for example, that the abortion right might flow from the great burden an unwanted child imposes on its mother’s life. Brief for the United States at 14-15. But whether or not abortion rights could be defended on such grounds, they were not the grounds on which this Court in fact relied. To the contrary, the Court explained at length that the right flows from the constitutional protection accorded all individuals to “define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.” Casey, 505 U.S. at 851. The analysis in Casey compels the conclusion that the patient-plaintiffs have a liberty interest in this case that a state cannot burden with a blanket prohibition. Like a woman’s decision whether to have an abortion, a decision to die involves one’s very “destiny” and inevitably will be “shaped to a large extent on [one’s] own conception of [one’s] spiritual imperatives and [one’s] place in society.” Id. at 852. Just as a blanket prohibition on abortion would involve the improper imposition of one conception of the meaning and value of human existence on all individuals, so too would a blanket prohibition on assisted suicide. The liberty interest asserted here cannot be rejected without undermining the rationale of Casey. Indeed, the lower court opinions in the Washington case expressly recognized the parallel between the liberty interest in Casey and the interest asserted here. See Compassion in Dying v. Washington, 79 F.3d 790, 801 (9th Cir. 1996) (en banc) (“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.”), aff’g, 850 F. Supp. 1454, 1459 (W.D. Wash. 1994) (“[T]he reasoning in Casey [is] highly instructive and almost prescriptive…”). This Court should do the same. B. Cruzan Supports the Liberty Interest Asserted Here We agree with the Solicitor Gen-eral that this Court’s decision in “Cruzan…supports the conclusion that a liberty interest is at stake in this case.” Brief for the United States at 8. Petitioners, however, insist that the present cases can be distinguished because the right at issue in Cruzan was limited to a right to reject an unwanted invasion of one’s body.[2.1] But this Court repeatedly has held that in appropriate circumstances a state may require individuals to accept unwanted invasions of the body. See, e.g., Schmerber v. California, 384 U.S. 757 (1966) (extraction of blood sample from individual suspected of driving while intoxicated, notwithstanding defendant’s objection, does not violate privilege against self-incrimination or other constitutional rights); jacobson v. Massachusetts, 197 U.S. 11 (1905) (upholding compulsory vaccination for smallpox as reasonable regulation for protection of public health). The liberty interest at stake in Cruzan was a more profound one. If a competent patient has a constitutional right to refuse life-sustaining treatment, then, the Court implied, the state could not override that right. The regulations upheld in Cruzan were designed only to ensure that the individual’s wishes were ascertained correctly. Thus, if Cruzan implies a right of competent patients to refuse life-sustaining treatment, that implication must be understood as resting not simply on a right to refuse bodily invasions but on the more profound right to refuse medical intervention when what is at stake is a momentous personal decision, such as the timing and manner of one’s death. In her concurrence, Justice O’Connor expressly recognized that the right at issue involved a “deeply personal decision” that is “inextricably intertwined” with our notion of “self-determination.” 497 U.S. at 287-89. Cruzan also supports the proposition that a state may not burden a terminally ill patient’s liberty interest in determining the time and manner of his death by prohibiting doctors from terminating life support. Seeking to distinguish Cruzan, Petitioners insist that a state may nevertheless burden that right in a different way by forbidding doctors to assist in the suicide of patients who are not on life-support machinery. They argue that doctors who remove life support are only allowing a natural process to end in death whereas doctors who prescribe lethal drugs are intervening to cause death. So, according to this argument, a state has an independent justification for forbidding doctors to assist in suicide that it does not have for forbidding them to remove life support. In the former case though not the latter, it is said, the state forbids an act of killing that is morally much more problematic than merely letting a patient die. This argument is based on a misunderstanding of the pertinent moral principles. It is certainly true that when a patient does not wish to die, different acts, each of which foreseeably results in his death, nevertheless have very different moral status. When several patients need organ transplants and organs are scarce, for example, it is morally permissible for a doctor to deny an organ to one patient, even though he will die without it, in order to give it to another. But it is certainly not permissible for a doctor to kill one patient in order to use his organs to save another. The morally significant difference between those two acts is not, however, that killing is a positive act and not providing an organ is a mere omission, or that killing someone is worse than merely allowing a “natural” process to result in death. It would be equally impermissible for a doctor to let an injured patient bleed to death, or to refuse antibiotics to a patient with pneumonia—in each case the doctor would have allowed death to result from a “natural” process—in order to make his organs available for transplant to others. A doctor violates his patient’s rights whether the doctor acts or refrains from acting, against the patient’s wishes, in a way that is designed to cause death. When a competent patient does want to die, the moral situation is obviously different, because then it makes no sense to appeal to the patient’s right not to be killed as a reason why an act designed to cause his death is impermissible. From the patient’s point of view, there is no morally pertinent difference between a doctor’s terminating treatment that keeps him alive, if that is what he wishes, and a doctor’s helping him to end his own life by providing lethal pills he may take himself, when ready, if that is what he wishes—except that the latter may be quicker and more humane. Nor is that a pertinent difference from the doctor’s point of view. If and when it is permissible for him to act with death in view, it does not matter which of those two means he and his patient choose. If it is permissible for a doctor deliberately to withdraw medical treatment in order to allow death to result from a natural process, then it is equally permissible for him to help his patient hasten his own death more actively, if that is the patient’s express wish. It is true that some doctors asked to terminate life support are reluctant and do so only in deference to a patient’s right to compel them to remove unwanted invasions of his body. But other doctors, who believe that their most fundamental professional duty is to act in the patient’s interests and that, in certain circumstances, it is in their patient’s best interests to die, participate willingly in such decisions: they terminate life support to cause death because they know that is what their patient wants. Cruzan implied that a state may not absolutely prohibit a doctor from deliberately causing death, at the patient’s request, in that way and for that reason. If so, then a state may not prohibit doctors from deliberately using more direct and often more humane means to the same end when that is what a patient prefers. The fact that failing to provide life-sustaining treatment may be regarded as “only letting nature take its course” is no more morally significant in this context, when the patient wishes to die, than in the other, when he wishes to live. Whether a doctor turns off a respirator in accordance with the patient’s request or prescribes pills that a patient may take when he is ready to kill himself, the doctor acts with the same intention: to help the patient die. The two situations do differ in one important respect. Since patients have a right not to have life-support machinery attached to their bodies, they have, in principle, a right to compel its removal. But that is not true in the case of assisted suicide: patients in certain circumstances have a right that the state not forbid doctors to assist in their deaths, but they have no right to compel a doctor to assist them. The right in question, that is, is only a right to the help of a willing doctor.