III. State Interests do not Justify a Categorical Prohibition on all
Assisted Suicide The Solicitor General concedes that “a competent, terminally ill adult has a constitutionally cognizable liberty interest in avoiding the kind of suffering experienced by the plaintiffs in this case.” Brief for the United States at 8. He agrees that this interest extends not only to avoiding pain, but to avoiding an existence the patient believes to be one of intolerable indignity or incapacity as well. Id. at 12. The Solicitor General argues, however, that states nevertheless have the right to “override” this liberty interest altogether, because a state could reasonably conclude that allowing doctors to assist in suicide, even under the most stringent regulations and procedures that could be devised, would unreasonably endanger the lives of a number of patients who might ask for death in circumstances when it is plainly not in their interests to die or when their consent has been improperly obtained. This argument is unpersuasive, however, for at least three reasons. First, in Cruzan, this Court noted that its various decisions supported the recognition of a general liberty interest in refusing medical treatment, even when such refusal could result in death. 497 U.S. at 278-79. The various risks described by the Solicitor General apply equally to those situations. For instance, a patient kept alive only by an elaborate and disabling life-support system might well become depressed, and doctors might be equally uncertain whether the depression is curable: such a patient might decide for death only because he has been advised that he will die soon anyway or that he will never live free of the burdensome apparatus, and either diagnosis might conceivably be mistaken. Relatives or doctors might subtly or crudely influence that decision, and state provision for the decision may (to the same degree in this case as if it allowed assisted suicide) be thought to encourage it. Yet there has been no suggestion that states are incapable of addressing such dangers through regulation. In fact, quite the opposite is true. In McKay v. Bergstedt, 106 Nev. 808, 801 P.2d 617 (1990), for example, the Nevada Supreme Court held that “competent adult patients desiring to refuse or discontinue medical treatment” must be examined by two non-attending physicians to determine whether the patient is mentally competent, understands his prognosis and treatment options, and appears free of coercion or pressure in making his decision. Id. at 827-28, 801 P.2d at 630. See also: id. (in the case of terminally-ill patients with natural life expectancy of less than six months, [a] patient’s right of self-determination shall be deemed to prevail over state interests, whereas [a] non-terminal patient’s decision to terminate life-support systems must first be weighed against relevant state interests by trial judge); [and] In re Farrell, 108 N.J. 335, 354, 529 A.2d 404, 413 (1987) ([which held that a] terminally-ill patient requesting termination of life-support must be determined to be competent and properly informed about [his] prognosis, available treatment options and risks, and to have made decision voluntarily and without coercion). Those protocols served to guard against precisely the dangers that the Solicitor General raises. The case law contains no suggestion that such protocols are inevitably insufficient to prevent deaths that should have been prevented. Indeed, the risks of mistake are overall greater in the case of terminating life support. Cruzan implied that a state must allow individuals to make such decisions through an advance directive stipulating either that life support be terminated (or not initiated) in described circumstances when the individual was no longer competent to make such a decision himself, or that a designated proxy be allowed to make that decision. All the risks just described are present when the decision is made through or pursuant to such an advance directive, and a grave further risk is added: that the directive, though still in force, no longer represents the wishes of the patient. The patient might have changed his mind before he became incompetent, though he did not change the directive, or his proxy may make a decision that the patient would not have made himself if still competent. In Cruzan, this Court held that a state may limit these risks through reasonable regulation. It did not hold—or even suggest—that a state may avoid them through a blanket prohibition that, in effect, denies the liberty interest altogether. Second, nothing in the record supports the [Solicitor General’s] conclusion that no system of rules and regulations could adequately reduce the risk of mistake. As discussed above, the experience of states in adjudicating requests to have life-sustaining treatment removed indicates the opposite.[3.1] The Solicitor General has provided no persuasive reason why the same sort of procedures could not be applied effectively in the case of a competent individual’s request for physician-assisted suicide. Indeed, several very detailed schemes for regulating physician-assisted suicide have been submitted to the voters of some states[4.1] and one has been enacted.[5.1] In addition, concerned groups, including a group of distinguished professors of law and other professionals, have drafted and defended such schemes. See, e.g., Charles H. Baron, et. al., A Model State Act to Authorize and Regulate Physician-Assisted Suicide, 33 Harv. J. Legis. 1 (1996). Such draft statutes propose a variety of protections and review procedures designed to insure against mistakes, and neither Washington nor New York attempted to show that such schemes would be porous or ineffective. Nor does the Solicitor General’s brief: it relies instead mainly on flat and conclusory statements. It cites a New York Task Force report, written before the proposals just described were drafted, whose findings have been widely disputed and were implicitly rejected in the opinion of the Second Circuit below. See generally Quill v. Vacco, 80 F.3d 716 (2d Cir. 1996). The weakness of the Solicitor General’s argument is signaled by his strong reliance on the experience in the Netherlands which, in effect, allows assisted suicide pursuant to published guidelines. Brief for the United States at 23-24. The Dutch guidelines are more permissive than the proposed and model American statutes, however. The Solicitor General deems the Dutch practice of ending the lives of people like neo-nates who cannot consent particularly noteworthy, for example, but that practice could easily and effectively be made illegal by any state regulatory scheme without violating the Constitution. The Solicitor General’s argument would perhaps have more force if the question before the Court were simply whether a state has any rational basis for an absolute prohibition; if that were the question, then it might be enough to call attention to risks a state might well deem not worth running. But as the Solicitor General concedes, the question here is a very different one: whether a state has interests sufficiently compelling to allow it to take the extraordinary step of altogether refusing the exercise of a liberty interest of constitutional dimension. In those circumstances, the burden is plainly on the state to demonstrate that the risk of mistakes is very high, and that no alternative to complete prohibition would adequately and effectively reduce those risks. Neither of the Petitioners has made such a showing. Nor could they. The burden of proof on any state attempting to show this would be very high. Consider, for example, the burden a state would have to meet to show that it was entitled altogether to ban public speeches in favor of unpopular causes because it could not guarantee, either by regulations short of an outright ban or by increased police protection, that such speeches would not provoke a riot that would result in serious injury or death to an innocent party. Or that it was entitled to deny those accused of crime the procedural rights that the Constitution guarantees, such as the right to a jury trial, because the security risk those rights would impose on the community would be too great. One can posit extreme circumstances in which some such argument would succeed. See, e.g., Korematsu v. United States, 323 U.S. 214 (1944) (permitting United States to detain individuals of Japanese ancestry during wartime). But these circumstances would be extreme indeed, and the Korematsu ruling has been widely and severely criticized. Third, it is doubtful whether the risks the Solicitor General cites are even of the right character to serve as justification for an absolute prohibition on the exercise of an important liberty interest. The risks fall into two groups. The first is the risk of medical mistake, including a misdiagnosis of competence or terminal illness. To be sure, no scheme of regulation, no matter how rigorous, can altogether guarantee that medical mistakes will not be made. But the Constitution does not allow a state to deny patients a great variety of important choices, for which informed consent is properly deemed necessary, just because the information on which the consent is given may, in spite of the most strenuous efforts to avoid mistake, be wrong. Again, these identical risks are present in decisions to terminate life support, yet they do not justify an absolute prohibition on the exercise of the right. The second group consists of risks that a patient will be unduly influenced by considerations that the state might deem it not in his best interests to be swayed by, for example, the feelings and views of close family members. Brief for the United States at 20. But what a patient regards as proper grounds for such a decision normally reflects exactly the judgments of personal ethics—of why his life is important and what affects its value—that patients have a crucial liberty interest in deciding for themselves. Even people who are dying have a right to hear and, if they wish, act on what others might wish to tell or suggest or even hint to them, and it would be dangerous to suppose that a state may prevent this on the ground that it knows better than its citizens when they should be moved by or yield to particular advice or suggestion in the exercise of their right to make fateful personal decisions for themselves. It is not a good reply that some people may not decide as they really wish—as they would decide, for example, if free from the “pressure” of others. That possibility could hardly justify the most serious pressure of all—the criminal law which tells them that they may not decide for death if they need the help of a doctor in dying, no matter how firmly they wish it. There is a fundamental infirmity in the Solicitor General’s argument. He asserts that a state may reasonably judge that the risk of “mistake” to some persons justifies a prohibition that not only risks but insures and even aims at what would undoubtedly be a vastly greater number of “mistakes” of the opposite kind—preventing many thousands of competent people who think that it disfigures their lives to continue living, in the only way left to them, from escaping that—to them—terrible injury. A state grievously and irreversibly harms such people when it prohibits that escape. The Solicitor General’s argument may seem plausible to those who do not agree that individuals are harmed by being forced to live on in pain and what they regard as indignity. But many other people plainly do think that such individuals are harmed, and a state may not take one side in that essentially ethical or religious controversy as its justification for denying a crucial liberty. Of course, a state has important interests that justify regulating physician-assisted suicide. It may be legitimate for a state to deny an opportunity for assisted suicide when it acts in what it reasonably judges to be the best interests of the potential suicide, and when its judgment on that issue does not rest on contested judgments about “matters involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy.” Casey, 505 U.S. at 851. A state might assert, for example, that people who are not terminally ill, but who have formed a desire to die, are, as a group, very likely later to be grateful if they are prevented from taking their own lives. It might then claim that it is legitimate, out of concern for such people, to deny any of them a doctor’s assistance [in taking their own lives]. This Court need not decide now the extent to which such paternalistic interests might override an individual’s liberty interest. No one can plausibly claim, however—and it is noteworthy that neither Petitioners nor the Solicitor General does claim—that any such prohibition could serve the interests of any significant number of terminally ill patients. On the contrary, any paternalistic justification for an absolute prohibition of assistance to such patients would of necessity appeal to a widely contested religious or ethical conviction many of them, including the patient-plaintiffs, reject. Allowing that justification to prevail would vitiate the liberty interest. Even in the case of terminally ill patients, a state has a right to take all reasonable measures to insure that a patient requesting such assistance has made an informed, competent, stable and uncoerced decision. It is plainly legitimate for a state to establish procedures through which professional and administrative judgments can be made about these matters, and to forbid doctors to assist in suicide when its reasonable procedures have not been satisfied. States may be permitted considerable leeway in designing such procedures. They may be permitted, within reason, to err on what they take to be the side of caution. But they may not use the bare possibility of error as justification for refusing to establish any procedures at all and relying instead on a flat prohibition.
Each individual has a right to make the “most intimate and personal choices central to personal dignity and autonomy.” That right encompasses the right to exercise some control over the time and manner of one’s death. The patient-plaintiffs in these cases were all mentally competent individuals in the final phase of terminal illness and died within months of filing their claims. Jane Doe described how her advanced cancer made even the most basic bodily functions such as swallowing, coughing, and yawning extremely painful and that it was “not possible for [her] to reduce [her] pain to an acceptable level of comfort and to retain an alert state.” Faced with such circumstances, she sought to be able to “discuss freely with [her] treating physician [her] intention of hastening [her] death through the consumption of drugs prescribed for that purpose.” Quill v. Vacco, 80 F.2d 716, 720 (2d Cir. 1996) (quoting declaration of Jane Doe). George A. Kingsley, in advanced stages of AIDS which included, among other hardships, the attachment of a tube to an artery in his chest which made even routine functions burdensome and the development of lesions on his brain, sought advice from his doctors regarding prescriptions which could hasten his impending death. Id. Jane Roe, suffering from cancer since 1988, had been almost completely bedridden since 1993 and experienced constant pain which could not be alleviated by medication. After undergoing counseling for herself and her family, she desired to hasten her death by taking prescription drugs. Compassion in Dying v. Washington, 850 F. Supp. 1454, 1456 (1994). John Doe, who had experienced numerous AIDS-related ailments since 1991, was “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” and sought prescription drugs from his physician to hasten his own death after entering the terminal phase of AIDS. Id. at 1456-57. James Poe suffered from emphysema which caused him “a constant sensation of suffocating” as well as a cardiac condition which caused severe leg pain. Connected to an oxygen tank at all times but unable to calm the panic reaction associated with his feeling of suffocation even with regular doses of morphine, Mr. Poe sought physician-assisted suicide. Id. at 1457. A state may not deny the liberty claimed by the patient-plaintiffs in these cases without providing them an opportunity to demonstrate, in whatever way the state might reasonably think wise and necessary, that the conviction they expressed for an early death is competent, rational, informed, stable, and uncoerced. Affirming the decisions by the Courts of Appeals would establish nothing more than that there is such a constitutionally protected right in principle. It would establish only that some individuals, whose decisions for suicide plainly cannot be dismissed as irrational or foolish or premature, must be accorded a reasonable opportunity to show that their decision for death is informed and free. It is not necessary to decide precisely which patients are entitled to that opportunity. If, on the other hand, this Court reverses the decisions below, its decision could only be justified by the momentous proposition—a proposition flatly in conflict with the spirit and letter of the Court’s past decisions—that an American citizen does not, after all, have the right, even in principle, to live and die in the light of his own religious and ethical beliefs, his own convictions about why his life is valuable and where its value lies.
‘The Philosopher’s Brief’: An Exchange May 29, 1997