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  •   'The State Has an Interest in Preventing Suicide . . . and Treating Its Causes'

    Friday, June 27, 1997; Page A18

    Following are excerpts from the Supreme Court decision in Washington v. Glucksberg allowing states to ban doctor-assisted suicides. The decision was written by Chief Justice Willam H. Rehnquist:

    The question presented in this case is whether Washington's prohibition against "caus[ing]" or "aid[ing]" a suicide offends the Fourteenth Amendment to the United States Constitution. We hold that it does not.

    It has always been a crime to assist a suicide in the State of Washington. . . . [Petitioners are] doctors [who] occasionally treat terminally ill, suffering patients, and declare that they would assist these patients in ending their lives if not for Washington's assisted suicide ban.

    The plaintiffs asserted "the existence of a liberty interest protected by the Fourteenth Amendment which extends to a personal choice by a mentally competent, terminally ill adult to commit physician assisted suicide. . . . "

    In almost every State – indeed, in almost every western democracy – it is a crime to assist a suicide. The States' assisted suicide bans are not innovations. Rather, they are longstanding expressions of the States' commitment to the protection and preservation of all human life. . . .

    More specifically, for over 700 years, the Anglo American common law tradition has punished or otherwise disapproved of both suicide and assisting suicide. . . .

    For the most part, the early American colonies adopted the common law approach. . . . Over time, however, the American colonies abolished . . . harsh common law penalties . . . [which] did not represent an acceptance of suicide. . . . [C]ourts continued to condemn it as a grave public wrong. . . .

    That suicide remained a grievous, though nonfelonious, wrong is confirmed by the fact that colonial and early state legislatures and courts did not retreat from prohibiting assisting suicide. . . . And the prohibitions against assisting suicide never contained exceptions for those who were near death. . . .

    Though deeply rooted, the States' assisted suicide bans have in recent years been reexamined and, generally, reaffirmed. Because of advances in medicine and technology Americans today are . . . sharply focused on how best to protect dignity and independence at the end of life. . . . Many States, for example, now permit "living wills," surrogate health care decisionmaking, and the withdrawal or refusal of life sustaining medical treatment. At the same time, however, voters and legislators continue for the most part to reaffirm their States' prohibitions on assisting suicide. . . .

    In 1991, Washington voters rejected a ballot initiative which, had it passed, would have permitted a form of physician assisted suicide. Washington then added a provision to the Natural Death Act expressly excluding physician assisted suicide. . . .

    The Due Process Clause guarantees more than fair process, and the "liberty" it protects includes more than the absence of physical restraint. . . . The Clause also provides heightened protection against government interference with certain fundamental rights and liberty interests. . . .

    We have also assumed, and strongly suggested, that the Due Process Clause protects the traditional right to refuse unwanted life saving medical treatment. But we "ha[ve] always been reluctant to expand the concept of substantive due process because guideposts for responsible decision making in this unchartered area are scarce and open ended. . . . "

    Our established method of substantive due process analysis has two primary features: First, we have regularly observed that the Due Process Clause specially protects those fundamental rights and liberties which are, objectively, "deeply rooted in this Nation's history and tradition. . . . " Second, we have required in substantive due process cases a "careful description" of the asserted fundamental liberty interest. . . .

    Turning to the claim at issue here, the Court of Appeals stated that "[p]roperly analyzed, the first issue to be resolved is whether there is a liberty interest in determining the time and manner of one's death," or, in other words, "[i]s there a right to die?" Similarly, respondents assert a "liberty to choose how to die" and a right to "control of one's final days," and describe the asserted liberty as "the right to choose a humane, dignified death," and "the liberty to shape death. . . . "

    The Washington statute at issue in this case prohibits "aid[ing] another person to attempt suicide," and, thus, the question before us is whether the "liberty" specially protected by the Due Process Clause includes a right to commit suicide which itself includes a right to assistance in doing so. . . .

    [A]s discussed above, we are confronted with a consistent and almost universal tradition that has long rejected the asserted right, and continues explicitly to reject it today, even for terminally ill, mentally competent adults. To hold for respondents, we would have to reverse centuries of legal doctrine and practice, and strike down the considered policy choice of almost every State. . . .

    Respondents contend, however, that the liberty interest they assert is consistent with this Court's substantive due process line of cases, if not with this Nation's history and practice. . . . [R]espondents read our jurisprudence in this area as reflecting a general tradition of "self sovereignty," and as teaching that the "liberty" protected by the Due Process Clause includes "basic and intimate exercises of personal autonomy." According to respondents, our liberty jurisprudence, and the broad, individualistic principles it reflects, protects the "liberty of competent, terminally ill adults to make end of life decisions free of undue government interference." The question presented in this case, however, is whether the protections of the Due Process Clause include a right to commit suicide with another's assistance. . . .

    The history of the law's treatment of assisted suicide in this country has been and continues to be one of the rejection of nearly all efforts to permit it. That being the case, our decisions lead us to conclude that the asserted "right" to assistance in committing suicide is not a fundamental liberty interest protected by the Due Process Clause.

    The Constitution also requires, however, that Washington's assisted suicide ban be rationally related to legitimate government interests. This requirement is unquestionably met here. . . . First, Washington has an "unqualified interest in the preservation of human life. . . . "

    The State has an interest in preventing suicide, and in studying, identifying, and treating its causes. . . . Research indicates, however, that many people who request physician assisted suicide withdraw that request if their depression and pain are treated. . . .

    Next, the State has an interest in protecting vulnerable groups – including the poor, the elderly, and disabled persons – from abuse, neglect, and mistakes. . . . If physician assisted suicide were permitted, many might resort to it to spare their families the substantial financial burden of end of life health care costs. . . .

    The State's assisted suicide ban reflects and reinforces its policy that the lives of terminally ill, disabled, and elderly people must be no less valued than the lives of the young and healthy, and that a seriously disabled person's suicidal impulses should be interpreted and treated the same way as anyone else's. . . .

    Finally, the State may fear that permitting assisted suicide will start it down the path to voluntary and perhaps even involuntary euthanasia. . . .

    In another case, Vacco v. Quill, upholding New York's ban on physician assisted suicide, Rehnquist wrote yesterday for the majority:

    By permitting everyone to refuse unwanted medical treatment while prohibiting anyone from assisting a suicide, New York law follows a longstanding and rational distinction.

    New York's reasons for recognizing and acting on this distinction – including prohibiting intentional killing and preserving life; preventing suicide; maintaining physicians' role as their patients' healers; protecting vulnerable people from indifference, prejudice, and psychological and financial pressure to end their lives; and avoiding a possible slide towards euthanasia – are . . . valid and important public interests. [They] easily satisfy the constitutional requirement that a legislative classification bear a rational relation to some legitimate end.

    Following are excerpts from a concurring opinion by Supreme Court Justice Sandra Day O'Connor in both decisions:

    Iagree that there is no generalized right to "commit suicide." But respondents urge us to address the narrower question whether a mentally competent person who is experiencing great suffering has a constitutionally cognizable interest in controlling the circumstances of his or her imminent death. I see no need to reach that question in the context of the facial challenges to the New York and Washington laws at issue here. . . . The parties . . . agree that in these States a patient who is suffering from a terminal illness and who is experiencing great pain has no legal barriers to obtaining medication, from qualified physicians, to alleviate that suffering, even to the point of causing unconsciousness and hastening death. . . .

    [T]he State's interests in protecting those who are not truly competent or facing imminent death, or those whose decisions to hasten death would not truly be voluntary, are sufficiently weighty to justify a prohibition against physician assisted suicide. . . . There is no reason to think the democratic process will not strike the proper balance between the interests of terminally ill, mentally competent individuals who would seek to end their suffering and the State's interests in protecting those who might seek to end life mistakenly or under pressure. . . .

    © Copyright 1997 The Washington Post Company

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