People v. Kevorkian

Mich v KEVORKIAN PEOPLE v GENERAL HOBBINS ATTORNEY 99752, 99758, 99591, 99674, Argued 99759. October Docket Nos. 1). (Calendar 13, 1994. Certiorari No. Decided December April Supreme of the United States on denied the Court — (1995). 1995, 514 US M.D., Kevorkian, charged separate in cases in the Jack was assisting Wayne Courts with in the sui- and Oakland Circuit 28.547(127), 752.1027; people, and also cides of three MCL MSA open charged in Circuit Court with murder was the Oakland assisting people arising before out of the suicides of two other case, In each the the enactment of the assisted suicide statute. charges dismissed. were Court, Kaufman, J., Wayne Circuit Richard C. found The impermissibly the the statute burdened assisted suicide process in to end one’s life. The due interest the decision J., that, Court, Cooper, Jessica R. concluded Oakland Circuit suicide, assistor, right person has the to commit an while a defendant, statute, standing challenge the such as the lacks as violative of the but found the statute to be unconstitutional Michigan Title-Object Constitution and because Clause of during involving purpose changed passage. In the its was case Breck, J., court, open charges, F. murder David con- assisting a was not murder. cluded that suicide case, County Appeals, Wayne Fitzgerald, In the the Court of (D. JJ., concurring part Shelton, Taylor, P.J. E. in and dissenting part), assisting affirmed the dismissal of the charges, respect constitutionality but reversed with (Docket to commit suicide and of the statute No. 171056). appeals. people appeal, cross and the defendant cases, County Appeals, Fitzgerald, In the Oakland the Court of (D. JJ., concurring part Shelton, Taylor, E. P.J. dissenting part), regarding affirmed the decision (Docket 172399), people No. and the assisted suicide statute References 2d, Am Jur Homicide 585. § liability for of another as result of accused’s at- Criminal death tempt kill another’s suicide. 40 ALR4th 702. self assist Kevorkian case, appeal. open Appeals, In the Fitzgerald, murder the Court of P.J., (D. J., dissenting), Taylor, J. E. Shelton, re- versed, (Docket reinstating charges 154740), No. and the appeals. defendant sought Wayne Teresa Hobbins and others a declaration in the Circuit Court that the assisted suicide statute was unconstitu- court, J., Cynthia Stephens, tional. The D. concluded that the 1963, 4, 24, statute violated Const art it because did not have § single object change purpose a and there was a in the of the during passage. process bill its The court further found a due right Appeals, to commit The Fitzgerald, suicide. Court of P.J. (D. JJ., concurring part Shelton, E. Taylor, and dis- senting part), affirmed the decision that the statute was unconstitutional, respect but reversed with to the decision that suicide, protects right the constitution the to commit conclud- ing assisting the state is free to criminalize a suicide (Docket 164963). parties appeal. No. The opinion, Supreme In a memorandum the Court held: provisions 752.1027; The assisted suicide of MCL MSA 28.547(127) validly were enacted and do not violate the Title- Object Michigan Clause of the Constitution. The United States prohibit imposing Constitution does not a state from criminal penalties assisting case, for a suicide. In the murder the common- encompass law definition of murder does not the act of intentionally providing by the means which a commits Only probable suicide. where there is cause to believe that death was the direct and natural result of a defendant’s act can properly charge the defendant be bound over on a of murder. merely leading up Where a defendant is involved in the events death, means, providing proper charge such as is suicide, assisting may prosecuted in a which be as a common- clause, felony saving 750.505; 28.773, law under the MCL MSA specifically prohibits assisting in the absence of a statute that a quash by The suicide. motion to must be reconsidered produced circuit court to if determine the evidence at the preliminary examination was sufficient to bind the defendant over for trial. Cavanagh Chief Justice and Justices and Griffin

stated: 1963, 4, provides may Const art that no law embrace § object, more than one nor a bill be altered or amended on passage through change original its either house so as to its purpose object as determined its total content. The legislation by examining is to be determined the law as en- acted, originally not as introduced. The assisted suicide statute 447 Mich 436 object, validly clearly only and was enacted. embraces one addition, changed during purpose was not its of the statute determining passage. substi- for if an amendment or The test subject changes purpose matter of the bill is whether tute original purpose. germane of the Michi- The creation provision Dying gan on Death and Commission placed penalties appropriately bill. the same criminal were 270, originally prohibited Any problems PA which with 1992 suicide, assisting the enactment of were eliminated 3, any replaced provisions and PA which the former remedied Thus, original in the act. the assisted constitutional defect 24. violative of Const art § suicide statute is not void as of the United States Constitution The Due Process Clause suicide, right encompass not a fundamental commit does assistance, regardless of whether the assistant with or without physician. right be inferred from federal case is a The cannot recognizing protected liberty in the withdrawal law interest life-sustaining medical treatment. Suicide involves an affir- life, whereas refusal or cessation of life- mative act end course, sustaining permits to run medical treatment life its to commit unencumbered contrived intervention. concept implicit liberty in the of ordered nor suicide is neither Rather, deeply history in and tradition. it rooted this nation’s impermissibly departure existing be an radical from would tradition, tradition, principles and from the that underlie that right protected by a to declare that there is such fundamental the Due Process Clause. of an It is incorrect to conclude on the basis absence of penalties criminal for an act of suicide itself and the existence capacity pragmatic to commit suicide that there is a of a right right constitutional to commit suicide. Such a is not expressly recognized in the United States Constitution or the Court, Supreme of the decisions United States and cannot Rather, reasonably repeatedly be inferred. the Court and un- equivocally sanctity rejected has the human life affirmed of and the notion that there is a of self-destruction inherent in phrase. any doctrine or common-law constitutional Supreme authority duty change The Court has the and the to required. the common law where While the of crime murder statute, categorized by has been classified and its definition has Although early been left to the common law. decisions held may merely providing that a murder conviction be based on the suicide, jurisdictions means which another commits few view, majority retain that and a treats assisted suicide as a crime, separate penalties with less onerous than those for People v Kevorkian participa- active drawn between have been Distinctions murder. leading up to in the events and involvement tion in a suicide years since suicide, providing In the the means. such as the decided, (1920), interpreta- Roberts, 211 Mich 187 was require evolved in criminal cases has of causation tion Only where there is death. an act and a nexus between closer the direct the death was probable to believe that cause properly a defendant act can result of the defendant’s natural charge defendant is the of murder. Where over on be bound leading up the commission of merely in the events involved means, act, furnishing a conviction as the such the final overt Thus, proper. the extent that Roberts suicide is of assisted support murder that common-law for the view be read as can providing intentionally the means encompasses of the act suicide, abrogated. person it should be commits which a suicide, proscribing specifically assisted a statute Even absent assisting punishment in a suicide would not prosecution for separate may precluded, common-law be had as be 750.505; saving MSA 28.773. MCL the clause of offense under enlarge the reinterpretation law does not of the common This suicide, liability rather re- scope but criminal for assisted merely in the liability is involved a defendant where duces suicide, providing leading up as means. such events County case neither murder in the Oakland Because Appeals of this had benefit court nor the Court circuit degree participation evaluating analysis for defendant, for to the circuit court it be remanded should quash. motion to of the defendant’s reconsideration Riley, concurring part joined by Justice Boyle, Justice erroneously majority dissenting part, stated context to absolve in the suicide criminal homicide defines murder, culpability for participate suicide those who precipitating A they participate death. in the final act unless may participates of another be in the death who murder, irrespective consent of the de- charged of the with ceased. of assisted Supreme a new crime Court not create saving of MCL authority clause under the

suicide recognizes crimes 750.505; common-law The clause MSA 28.773. simply Supreme cannot by Court proscribed statute. The not murder as murder of common-law the definition exclude from saving to authorize by clause then use the statute and defined crime of assisted as the new murder was common-law what suicide. cases, as a matter causation shown establish the acts In these Mich Thus, purposes of law for of bindover. the trial erred in courts quashing the informations. joined part concurring Levin, Mallett, Justice Justice in dissenting part, in PA stated that 1993 the § violates competent, terminally Clause Due Process insofar as it bars a facing imminent, person agonizing obtaining ill death from County to medical assistance commit suicide. the Oakland case, murder the defendant’s were not actions murder. evidence establishes no more criminal sui- than assistance of cide or a common-law assisted suicide offense for which no provision is made statute. person competent terminally may liberty A who ill is have a obtaining physician’s interest in a assistance to commit suicide. particular terminally 752.1028; applied person, As a ill to MCL 28.547(127)may MSA be violative of the Due Process Clause Thus, terminally person the Fourteenth Amendment. ill permitted apply should be circuit court for an order declaring determination of entitlement seek medical assis- tance to suicide and commit whether statute is violative of person. applied the Due Clause as Process generally prohibit not The real issue is whether the state can suicide; may deny competent, it whether the is state termi- nally facing imminent, death, person, agonizing ill medical assistance to commit suicide. distinguished Assisted suicide can be from other conduct Clause, protected by Due Process such as abortion and life-sustaining withdrawal of medical treatment. law State person’s ability implicate restrictions on a to end life personal liberty. competent, terminally interest in Whether person ill has a to medical assistance to commit suicide balancing against cannot be decided without the state’s interest person’s interest. context, legitimate generally In the suicide state interests outweigh ending majority in the interest one’s life. The vast depressed mentally suicides are irrational efforts or Society reasonably can disturbed. assume that such mental problems person’s perception. have clouded the oth- Where an person healthy depressed disturbed, mentally erwise is personal liberty weak, strong interest is and the state has a contrast, protecting person’s interest in interests in life. In ill, person competent, terminally where the involved is imminent, death, facing agonizing the interest of the state weak, preserving terminally is life and the interest of the ill person ending suffering strong. First, general The state two asserts interests. the state’s preserving interest life. In situations most where a People v Kevorkian suicide, handicapped person, might even if commit seek to disturbed, remaining years for the emotionally of life has or largely possibility for protect. has foreclosed That been state to person. terminally that remains is not between ill The choice a death, principal of death. The but over the terms life and as- argument against is the second interest assisted suicide assuring persons live are who desire to that serted the state: clearly committing a While this is into suicide. not coerced adequate procedures great importance, and have can concern terminally person’s developed ill choice to a to assure that been life is not coerced. end concurring part in joined Levin, Mallett, Justice Justice terminally person a dissenting part, ill has stated that a only where that right death to hasten an inevitable to choose suffering competent from person decision and is has made proof may require a decision great pain. of such The state convincing suicide Because the assisted evidence. clear and n suicide, physician-assisted is prohibits it completely statute facially invalid. suffering during a terminal illness liberty to end one’s The constituency significant and is approval of a exists without analy- recognition deserving Historical than abortion. no less rights inappropriate. Earlier laws or is of fundamental sis interests; privacy liberty are not the sources traditions power provisions on the are limitations constitutional liberty has sovereign infringe Case law of citizens. to right competent person to recognized has a fundamental that a treatment, to determine whether medical refuse unwanted death, suffering inevitable when faced with continue lifesaving may compel treatment. To unwanted not the state simply logical right physician-assisted recognize suicide of the law. extension society personal no is in remain so Some decisions conscience, person’s appropriateness. A position judge their personally chosen coupled an informed and the advice of with decision-making A com- appropriate method. physician, is the undue burden on physician-assisted is an plete suicide ban on suffering through terminally person right to end ill of a right person to has- of a physician-prescribed medication. absolute, Only where however. is not an inevitable death ten suffering competent from decision and is made a has Otherwise, recognized. the state pain great be should preserving well as other life as interest its assert interests. established 99591, and remanded. reversed Docket No. remanded. reversed and No. Docket Mich 99752, 99758, part Docket Nos. affirmed and reversed in part. Docket No. vacated and remanded. (1994). App 180; 205 Mich 517 NW2d 293 vacated. (1994) App 194; part 205 Mich 518 NW2d 487 affirmed in part. reversed in Roberts, (1920) 211 Mich NW over- ruled. — — — Criminal Law Assisted Suicide Constitutional Law Title- Object Clause. validly The assisted suicide statute was enacted and does not Title-Object Michigan Constitution; violate the Clause of the prohibit the United States Constitution does not a state from imposing (Const penalties assisting criminal for in a suicide 4, §24; Const, XIV; 752.1027; art US Am MCL MSA 28.547[127]). Kelley, Attorney Frank J. General, Thomas L. Casey, General, Solicitor O’Hair, John D. Pros ecuting- Attorney, Timothy Baughman, and A. Training Chief, Appeals, Research, for the people. Kelley, Attorney

Frank J. General, Thomas L. Casey, Thompson, General, Solicitor Richard Pros- ecuting Attorney, Shifman, and Errol Assistant Prosecuting Attorney, people. for the Kelley, Attorney Frank J. General, L. Thomas Casey, Thompson, General, Solicitor Richard Pros- ecuting Attorney, Joyce Appellate Todd, Chief, F. Division, and Browne, Richard H. Assistant Pros- ecuting Attorney, people. for the Sedler, A. Robert Denenfeld, Paul J. Elizabeth Eugene Feingold, plaintiffs Gleicher, for the Hobbins. Fieger, Fieger (by Geoffrey Schwartz, & P.C. N.

Fieger, Hamway, Pamela A. and Michael Alan Schwartz), for the defendant. v Kevorkian Kelley, Attorney General, L. Thomas J.

Frank Devine, Casey, General, Anne Solicitor Deborah Charge, Attorney General Assistant Attorney General, Nelson, Assistant C. Thomas defendant Hobbins. for the Curiae: Amici Kelley, Attorney General, L. Thomas J.

Frank Casey, ecuting Attorney, O’Hair, General, D. Pros- John Solicitor Baughman, Timothy A.

and Training Appeals, for the Chief, Research, County Prosecutor’s Office. Oakland Hillegonds, A. for C. Co- Transeth Paul Steven Representatives, Speaker Michigan House of Co-Speaker Michigan Hertel, House Curtis Representatives, Majority Posthumus, Dick Michigan Senate, and Arthur J. Leader Minority Michigan Miller, Jr., Sen- Leader of ate. Joseph Longley Dahling (by

Bodman, A. & Sulli- Goodloe) Michigan the B. for van and Martha Catholic Conference. Zanglin, Joseph Benjamin Linton, P. Paul and Michigan Forsythe for Clarke D. State Senators Representatives. and Kraayeveld, Counsel, and W. Local Marzen,

James Bopp, Avila, Jr., Daniel Thomas J. James Broekmann, Co- Altomare, and Jane E. T. John Michigan Handicapper Counsel, for Caucus Advocacy Task Force Ethics and Nursing Group. Home Action (by Kleinbrook, Charles Klein- P.C.

Charles brook), (by Bopp, James Coleson & Bostrom Mich Opinion op the Court Coleson)

Bopp, Jr., E. and Richard for the Na- Right Committee, Life tional Inc. (by Curdo A. & Martell Curdo and Elizabeth. Martell) Right Michigan.

Marie E. for Life of (by Modelski, Butler & P.C. Michael J. Model- ski), Wesley Smith, J. for International Anti- Euthanasia Task Force.

Honigman, (by Miller, Schwartz Cohn D. & John Knowlton), Timothy Sawyer Pirich and Johnson, Kirk B. Orentlicher, lie, L. David Michael Sidley (by Bierig & Jack R. E. Austin and Paul Kalb), for American Medical Association. Smith,

Camille Jr., Abood and J. Thomas for Family Century. America Values for the 21st Opinion. cases raise three These Memorandum regard imposition issues with to the state’s of responsibility persons criminal ers in on who assist oth- committing questions pre- suicide. Two are appeals sented 99591, 99752, Michigan in Docket Nos. (1) 99758, and 99759: whether as- statute, sisted 28.547(127), 752.1027; suicide MCL MSA 1963, was enacted in violation Const (2) provisions 4, § art 24; whether the criminal 28.547(127) MCL 752.1027; MSA violate the United States Constitution. No. Docket a case predating question statute, the assisted suicide (3) presented is: whether the circuit court erred quashing charging the information the defendant with murder. majority justices opinion

A that: 1) provisions The assisted suicide of the stat- validly ute were Title-Object enacted and do not violate the Michigan

Clause of the Constitution. People v Kevorkian Opinion of the Court C.J., and Brickley, Boyle, Levin, (Cavanagh, JJ.) Mallett, Riley, Griffin, and 2) pro- does not States Constitution The United penalties imposing on criminal state from hibit a committing suicide. assists another one who and (Cavanagh, C.J., and Boyle, Riley, Brickley, JJ.) Griffin, 3) People Roberts, case, v In the murder (1920), to the is overruled Mich 178 NW support the view that it be read to extent that the common-law definition can encompasses of murder intentionally providing the means of person the act which a Only where there commits suicide. probable the that death was cause to believe is act can of a defendant’s and natural result direct the defendant be charge properly on a bound over merely is involved a defendant of murder. Where up leading death, as to the such in the events providing assisting charge proper means, prosecuted aas common- suicide, be in a which saving felony clause, MCL under law a statute 28.773, in the absence of 750.505; MSA assisting specifically prohibits in a suicide. C.J., and Brickley, Griffin, Levin, (Cavanagh, JJ.) and Mallett, 4) quash must be reconsidered The motion to the evi- to determine whether circuit court preliminary produced examination at dence for trial. defendant over bind the sufficient was to. C.J., Brickley, (Cavanagh, JJ.) Mallett, Ap- judgment the Court We reverse People peals Kevorkian, No. Docket v 99759, and Kevorkian, No. Docket respective courts circuit the cases remand for Attorney proceedings. In Hobbins v further reverse we General, Docket Nos. regard Appeals judgment with the Court of Mich Cavanagh, C.J., Opinion Brickley J«L Griffin, and and 1963, 24, to 4, § the violation of claimed Const art respects. People Finally, and affirm in other all Kevorkian, 99674, v Docket No. we vacate the the judgment Appeals, Court of the and remand proceedings. case to court the circuit for further opinion signed by This memorandum the justices. separate concurring seven dissenting opinions. There are and justices

However, at least four every holding, disposition statement, concur in and opinion. of this memorandum Brickley C.J., JJ. Cavanagh, Griffin, regard These cases raise three with the issues imposition responsibility state’s on criminal persons committing who assist others in suicide. questions presented by appeals Two are the (1) 99591, 99752, 99758, Docket Nos. and 99759: Michigan statute, Whether assisted suicide 28.547(127), 752.1027; MCL MSA was enacted (2) 1963, 4, violation § of Const art 24. Whether provisions criminal 752.1027; of MCL MSA 28.547(127) violate the United States Constitution. predating In Docket No. a case the assisted (3) question presented statute, suicide is: quashing Whether court circuit erred in charging information the defendant with murder. (1) provisions We conclude: the assisted suicide validly of the statute were enacted and do not Title-Object Michigan violate the Clause of the (2) Constitution; the United States Constitution prohibit imposing does not a state from criminal penalties on who one assists another in commit- (3) ting suicide; case, in the murder motion quash must be reconsidered the circuit court to produced prelimi- determine if the evidence at the nary examination was sufficient bind the defen- dant over for trial. v Kevorkian Cavanagh, C.J., JJ.

I HOBBINS ATTORNEY GENERAL 99758) (DOCKET NOS. ACTION”

THE "DECLARATORY JUDGMENT Shortly Legislature enacted the as- after group plaintiffs, statute, two of sisted suicide alleged suffering from terminal whom are to be them, cancer, medical a friend of one of and seven professionals, brought Wayne care an action seeking Court, the stat- Circuit a declaration parties The moved for ute was unconstitutional. sought summary judgment plaintiffs and the preliminary injunction against enforcement of the The court found the statute to be statute. circuit First, it concluded that there unconstitutional.1 4, § art 24: the were two violations of Const single object, and there was statute did not have a during change purpose its bill through Legislature. passage Second, the court process right to commit suicide. How- found a due preliminary injunction, ever, it declined to issue a concluding hearings needed to deter- would be placed an undue mine whether the statute on that of burden right. Attorney General filed a claim The Appeals. appeal in the Court of PEOPLE v KEVORKIAN 99591)

(DOCKET NO. THE ASSISTED SUICIDE CASE” "WAYNE COUNTY of the assisted suicide Also after the enactment alleged statute, to have Kevorkian is defendant The de- in the death of Donald O’Keefe. assisted patients, psychiatrist, and a court found that the two The circuit statute, challenge standing that the other pharmacist plaintiffs but had standing Appeals discuss the not. The Court of did not did question, raised here. and it has not been Mich Opinion by Bkickley Cavanagh, C.J., JJ. charged fendant was under the statute and bound preliminary over after examination. He moved to granted dismiss, and the circuit court the motion. rejected challenges The § court the art process statute, but found a due interest in the imper- life, decision to end one’s and that the law missibly burdened that interest. evidentiary hearing

The court held an to deter- four-part mine if the facts satisfied the had set forth in its test that it opinion.2 Following the hear- ing, concluding the court issued an order that the facts of the case met the standard and dismissed charge. prosecutor appealed to the Court Appeals.

PEOPLE v KEVORKIAN

(DOCKET 99759) NO. THE "OAKLAND COUNTY ASSISTED SUICIDE CASE” charged sepa- Defendant Kevorkian was in two assisting rate files with in the suicides of Merion Frederick and Ali Khalili. The defendant was preliminary bound over after a examination in one case and waived examination in the other. The granted circuit court the defendant’s motion to potential privacy dismiss. The court discussed the liberty ending and life, interests in one’s conclud- ing person that a does have the to commit However, suicide. it further concluded that defen- 2The standard that the trial court had announced was the follow ing: person’s Court finds that when [TJhis of quality life is significantly impaired by a medical condition and the medical extremely unlikely improve, person’s condition is and that decision response to commit suicide is a reasonable causing quality significantly condition paired, of life to be im- freely and the decision to end one’s life is made without influence, constitutionally protected undue such a has a

right to commit suicide. v Kevorkian Cavanagh, C.J., JJ. and challenge standing to dant Kevorkian lacked statute was The court also found that the statute.3 unconstitutional because one it had more than changed during purpose object because its was prosecut- through Legislature. passage its ing appealed. attorney

PEOPLE KEVORKIAN 99674) (DOCKET NO. MURDER CASE”

THE "OAKLAND COUNTY enacted, was defendant Ke- Before the statute Sherry allegedly of vorkian assisted the deaths Marjorie 23, 1991. on Miller and He was indicted Wantz October grand jury on two a citizens’ preliminary of murder.4 After a examina- counts tion, over for trial.5 In the defendant was bound dismiss, court, the circuit the defendant moved judge granted motion, conclud- and the circuit ing assisting in not fall within that suicide does prosecutor appealed. the crime of murder. The ii Appeals in two issued its decisions The Court opinions May 10, 1994. One decision sets of on involving suicide dealt with the cases assisted majority the assisted statute.6 The concluded was unconstitutional because suicide statute object, of art than one in violation act had more Though recognizing arguably it was not § 24. standing, question Appeals did not discuss the The Court of it has not been raised in this Court. statute, specify degree permitted by not the indictment did As 28.550, 767.71; 750.318; MSA 28.1011. MCL MSA MCL See murder. delivering had indicted on one count The defendant also been legitimate professionally than for other controlled substance recognized purposes. 14.15(7401X1). However, 333.7401(1); MSA MCL drug judge dismissed the count. the district General, App Attorney 518 NW2d 205 Mich 6 Hobbins v (1994). 447 Mich Cavanagh, C.J., JJ. necessary remaining issue, to deal with the majority went on to consider whether the statute violated the United States Constitution. The ma- jority violation, it concluded that there was no the state was free to make a criminal committing offense to assist another in suicide.7 appeal regarding The the murder case was de- separately.8 majority9 cided The concluded that the quashing circuit court erred in the information.

hi prosecuting The authorities in each of the as- appealed sisted suicide cases the conclusion that the assisted suicide statute was enacted in viola- 1963, 4, § tion of Const kian filed a cross art 24. Defendant Kevor-

appeal regard with to the United Wayne County States constitutional issue in the plaintiffs case, assisted suicide declaratory judgment and the in the appli- action filed their own appeal cation for leave to on that issue. applica- case, murder tion for leave to defendant Kevorkian filed an appeal. 6, 1994, On June we granted applications, 920, 445 Mich and the argued 4, cases were on October 1994.

IV A During 1991, several bills were introduced in Fitzgerald. majority opinion by Judge The was written E. Thomas judges panel, The other on the Taylor, Clifford W. and Washte Judge Shelton, sitting by assignment, naw Circuit Donald E. wrote separate opinions. Judge regard 4, concurred with to the art Shelton issue, regard but dissented with 24§ to the United States constitu Taylor Judge tional violation. concurred that the statute did not Constitution, violate the United States but would have found no art violation. § 8People App v Kevorkian No 205 Mich 517 NW2d 293 (1994). opinion by Judge Fitzgerald, was written and concurred in Taylor. by Judge Judge Shelton dissented. v Kevorkian Brickley Cavanagh, C.J., Griffin, JJ. and and Legislature regarding assisting subject ultimately The that became 1992 PA suicide. bill 7, 1991, HB 4501. 270 was introduced on March as originally introduced, As it would have created the Michigan Dying Commission on Death and that study "voluntary was to self-termination of life” subjects report and related and its recommenda- Legislature.10 tions to the It was referred to the public Judiciary Committee, hear- and there were ings reported a in December 1991. The committee 12, 1992. substitute bill to the House on November 24, amended the sub- On November the House adding make it stitute bill a section that would committing suicide,11 a crime to assist another passed that date.12The and the bill the House on passed 3, 1992, and it Senate the bill on December signed by 15. 1992 the Governor on December was 31, 1993, March PA 270. It was to be effective ninety days legislative pro- session, after the as 4, § art vided Const 27._ 10The title of the read: bill Michigan dying; A to commission on death and bill create the duties; provide membership, powers, prescribe and and to to its concerning development legislative recommendations

for the dying. related to death and certain issues pending at the time of the introduction Two other bills had been assisting penalties HB criminal for suicide. of HB 4501 that included language very similar to that 32. The added to HB 4501 was SB of SB 32. provi presence of the new title was amended to reflect the sions: Michigan dying; commission on death and A bill to create the duties; provide membership, powers, prescribe to for to its concerning development legislative recommendations prohibit dying; to certain related to death and certain issues suicide; prescribe penal- pertaining to the assistance of acts speciñc ties; repeal parts act on a date. certain of this [Emphasis added.] Mich Opinion by Cavanagh, C.J., JJ. January 26, 1993, On SB 211 was introduced § amend 7 of 1992 PA which contained the penalties.13 passed criminal February It the Senate on ap- February 25,

11. On the House proved provided among things, substitute, which, other including act, both the commis- provisions, sion and criminal would be effective on February 25, 1993. The Senate concurred in the signed substitute, and the Governor bill day. same 1993 PA 3.14 give

Each house had voted to the act immediate effect, and thus act on was effective February 25, 1993. The enrolled bill15 sets forth 28.547(127). 752.1027; provided 13 MCL MSA It also that the crimi provisions expire reported nal would six months after the commission Legislature. to the 3, provision illegal Under 1993 PA the it makes to assist in a suicide reads as follows: (1) person knowledge person A who has that another intends attempt suiqide intentionally to commit or to commit and who following guilty does either of the is of criminal assistance to suicide, felony punishable by imprisonment for not more them years by $2,000.00, or a fine of not more than or both: (a) physical by person Provides the means which the other attempts or commits suicide. (b) Participates physical by in a act which the other attempts or commits suicide. (2) (1) apply withholding Subsection shall not to or withdraw- ing medical treatment. (3) (1) apply prescribing, dispensing, does Subsection not to administering procedures medications or if the intent death, pain relieve medication or death. or discomfort and not to cause even if the procedure may hasten or increase the risk of (4) 25, February This section shall take effect 1993. (5) repealed This section is effective 6 months after the date legislature the commission makes its recommendations pursuant 752.1027; 28.547(127).] to section 4. MSA [MCL 15 enacted, As the title read as follows: prohibit pertaining An act to certain acts to the assistance suicide; provide development legislative for the recommen- concerning dying, dations certain issues related to death and People v Kevorkian Cavanagh, C.J., JJ. full text of each section of the act as required 1963, 4, by Const art statute, 25. Pursuant to the § the Commission on Death and Dying was consti- tuted and prepared report its final Legisla- ture.

B 1963, 4, Const art provides as follows: § No law shall embrace more than object, one expressed which shall be in its title. No bill shall be altered or passage through amended on its either determined its change original house so as to purpose its as its total content and not alone title.[16] Three kinds of challenges may brought be against statutes on the basis of Const art (1) (2) a "title-body” challenge, a multiple- §24: (3) object challenge, and a change purpose chal- lenge. No "title-body” challenge, claiming that title of the act does not express adequately law, content However, is before us. other two contesting bases for the statute are presented.

The circuit court in both the declaratory judg- ment action and the Oakland County assisted suicide case held that the statute had more than one object and that purpose the of HB 4501 was changed during passage its through Legisla- ture.

The Appeals Court of majority reached only the including suicide; Michigan assistance of to create the commis- dying; prescribe membership, powers, sion on death and to its duties; prescribe penalties; repeal parts and to and to certain of specific this act on a date. language Michigan Similar has been in each Constitution since 1850, 4, 20, 1908, 5, 1850. Const art Const §§ art 22. §§ Mich by Cavanagh, C.J., JJ. and and challenge

multiple-object and affirmed the circuit court decisions.17 challenges 4, § 24

We would hold that both art merit, of the are without and reverse. statute MULTIPLE-OBJECT CHALLENGE purpose provision The of constitutional now Cooley 4, § in found art was stated Justice language years fifteen after such was included of 1850: Constitution history purpose and of this constitutional provision elucidation at our hands. The together nature, require any are too well understood to practice bringing subjects into in their one bill diverse connection, having necessary no with a view to combine in their favor the advocates of all, passage and thus secure the of several mea- sures, merits, upon no one which could succeed its own legislator corruptive one was both dangerous scarcely to It the state. was more so, however, practice, than another also intended which, provision, by remedied this to be through management, clauses were in- dexterous gave the titles no serted tion, bills which intima- passage through legislative and their secured generally bodies whose members were not aware design of their intention and effect. There was no legislation by making this clause embarrass scope unnecessarily laws operation, restrictive in their multiplying number; their and thus but put constitution meant an framers legislation end to to, of the vicious character referred upon little than a fraud which was less require every pro- public, case merits, posed upon measure should stand its own legislature fairly and that the should be notified of above, Wayne County As noted the circuit court in the assisted challenge. rejected the art 24§ suicide case 455 v Kevorkian Cavanagh, C.J., JJ. required pass upon [People it. design when

its ex rel 481, 13 Mahaney, Drake v Mich 494-495 (1865).] provision applied

The is not meant to be restric- Kuhn v 378, Treasury Dep’t, 384 Mich 387- tively. (1971). 644 v See also Local No 183 NW2d 796 79, 91; 116 Corp, 367 Mich Hosp Oakwood NW2d (1962): "object” of Numerous cases have held that the purpose general or aim of the enact- statute is ment. The legislature may empower body cre- everything requisite, necessary, it ated expedient to do principal carry objective out the to be Legislation, primary object, if it has a is attained. not means of it more than 1 invalid because embraces attaining primary object. In Brew- its re Site, Housing 291 Mich 313 ster Street NW [289 (1939)]. statutes, it would be simplest With all but the section, describe the possible "object” to select one reason, section, of that and be able to as Court case, did this Appeals majority have different The flaw remaining objects. sections of 1992 approach defining object in this PA 270 limited to the content of the bill being as Appeals Court of as introduced. The originally said: expressed in original purpose of HB as bill, body of the was to create a

both the title and public study certain issues related to new death and act regulatory no au- dying. This bill had HB 4501 was amended to add the thority. When provisions had of SB the additional substance objective—to different amend the Pe- another and to create the crime of criminal assistance nal Code 194, 201-202; App 518 NW2d to suicide. Mich [205 (1994).] Mich by Brickley Opinion Cavanagh, C.J., Griffin, JJT. and and Appeals majority reasoning, In the Court of so analysis multiple-object to in confused the be used appropriate assessing with that a chal- cases change purpose theory. lenge of The based on legislation by object of the must be determined examining originally enacted, not the law as as introduced. clearly

We would find instant statute object.18 only one While the cases cited embrace parties involving multiple-object challenges quite statutes, an concern different examination of multiple-object those cases that have found viola- tions19and that have not20demonstrates that those 18 Appeals majority although The Court of said that the statute encompasses single "subject,” primary objectives. it has two As earlier, Appeals noted cially introduced. the Court of reached that conclusion artifi selecting object originally of as the the bill its content as Further, "subject” "object” largely the terms and are issues, equivalent purpose analyzing for the of these and are often courts, interchangeably by e.g., Dep’t v Advisory used Livonia of Social Services, re 466, 499; (1985); Opinion 423 Mich 378 NW2d 402 294, 441, Constitutionality 465-466; of 1972 PA 389 Mich 208 (1973). Appeals majority 469 NW2d instant case: Even the Court of did so in the purpose one-object provision bringing The is to avoid subjects necessary into one bill diverse that have no connection. Treasury Dep’t, App 564;

Mooahesh 195 Mich 492 [v (1992)]. App 246 NW2d Mich [205 199.] 19 example, Advisory Opinion Constitutionality For on of 1975 1), (Question 123; (1976), PA 227 396 Mich 240 193 NW2d the statute (1) (2) commission, political requirements established a ethics set forth (3) committees, imposed filing respect for candidate to contributions and expenditures, lobbying statements with (4) expenditures, placed campaign limits on (5) (6) fund, campaign regulated established a state (7) activities, repealed existing and five laws. People 285; (1969), Carey, In v 382 Mich 145 NW2d this Court improper dealing held that it was to include in the statute with the hire, supervision, regulation, and control of motor vehicles for provision purporting give inspectors appointed by the Public Ser- powers police vice Commission the same as oificers. Centers, Drug 1; App In Hildebrand v Reveo Discount 137 Mich (1984), Appeals NW2d the Court of found it unconstitutional Michigan Rights provision restricting include in the Civil Act a polygraph employment of use results decisions. Square Agriculture Dep’t, App 499; v Builders 176 Mich v Kevorkian Cavanagh, C.J., JJ. squarely category the instant case falls within the permissible joining statutory provisions. of Appeals majority sought Court to distin- guish People Trupiano, App 97 Mich (1980), prosecutors NW2d 49 relied, on which the ground question on the that the statute in in that (the Code)21 legisla- case Public Health involved a constituting However, tive enactment a "code.”22 (1989), argued objects 440 NW2d 639 it was that the statute had two —regulation pricing regulation deceptive advertising. How- ever, Appeals rejected upheld the Court of that contention and constitutionality of the act: pricing deceptive advertising We do not believe the item title-object Michigan act violates the clause of the Constitution. purpose clause, title-object notice, namely The of [the] was dissimilar, Although objectives, regula- satisfied. the act’s two pricing advertising, tion of to be at odds with the constitution. and are not so diverse in nature as Further, objects the are purpose, protection. consistent with the overall consumer Since provisions, the title of the act need not be an index of its it is inconsequential protec- that the act fails to mention consumer reading purpose. tion. A fair of the title demonstrates its Carlson, 448; (1942), Jacobson v 302 Mich NW2d an involved amendment of solely the motor vehicle statute that dealt with the subject pedestrians and sidewalks. This Court found that statute Title-Object not to be in violation of the Clause. Comm, Apple (1941), In Kull v State 296 Mich 296 NW 250 upheld provisions this Court ranging an act that contained from promoting consumption apples the taxing apple produc and sale of tion, commission, creating apple providing penalties. an While matters, seemingly proper the act addressed four diverse it was join regulation them apple industry. because all related to the 21The penalties Public Health Code includes criminal for controlled many provisions. substance violations as well as other MCL 333.1101 14.15(1101) seq.; seq. et MSA et Trupiano The Court said: Supreme recognized degree The Court has a wide of discre- reviewing legislative tion in enactments which constitute a Advisory Opinion Constitutionality "code.” In re of 1972 PA 294, supra, the Court noted at 463: "Emphasis given subject to the fact that the matter consti- code, inherently scope tutes and that of a code must be enough encompass necessary broad the various facets Mich Cavanagh, C.J., J<I exception” Rather, § 24. in art there is no "code multiple-object upholding against codes the cases challenges at most an extension of liberal- are challenges ity reviewed. with which such are Appeals majority suggested that The Court provisions Legislature have included the the regarding could penal- criminal the commission and the general in the same bill if it had used a more ties title: regu Legislature codify Had the intended to suicide, general it "subject” late the of assisted public could have notified the declaring this intention single purpose by joining broad object in HB 4501 with object contained together contained in SB 32 Legislature in one bill. This the did not do. This failure resulted containing body objects. of the act two distinct The fact the title was amended to reflect addition of 7 does not cure the constitutional § infirmity. one-object provision may not be by creating a title that includes circumvented legislative objects. Hildebrand different Revco Centers, 1, 11; Drug App 137 Mich Discount (1984). App NW2d 778 Mich [205 202-203.] emphasis misplaced. It This on the title is can- objects if not be said that a statute has two specifically its title only content, if describes its but one general. purposes the title is Insofar as one of provide Title-Object of the Clause is to notice of Legislature the content of a bill to the and the specific public, a more title better achieves that purpose, particularly regarding fairly short bill opinion, like the one in this case. Elsewhere in its drafting permit design law. If fail of a unified we such a Michigan long codes object’ not be enacted in so as the 'one- [Trupiano present limitation in the constitution.” at 420.] Kevorkian v Opinion by Cavanagh, C.J., JJ. Appeals recognized of majority Court itself act, title, of that one looks to the not the body single to determine whether it has a object: title, object expressed in the While must be body the mine whether law must be examined deter-

it object. embraces more than one Supervisors Kent Reed, rel Bd v Co ex of Kent Co (1928). 120, 122; Mich NW 656 [205 App Mich 199.] plaintiffs

The Hobbins and defendant Kevorkian also that argue there was a multiple-object viola- provisions tion could because have been en- separate They acted bills. rely Advisory on on of 1975 PA 227 Constitutionality 1), 123, 129; (Question Mich 240 NW2d 193 (1976): provisions might two

"The these sections have separate been laws either enacted without any referring affecting them in way to or [Quoting other.” Kent ex rel Bd Supervisors Co Reed, supra at 122.] This principle is unsound. There is no virtually statute that could not be subdivided and enacted as several It is of "multi- precisely bills. that kind plying” legislation we séek that to avoid with given liberal construction to art 24.23 § we hold

Accordingly, would that the assisted suicide statute one only object embraces thus validly was enacted._ fact, might upheld instant if statute well be even

principle penalties provides were valid. The criminal section it repealed "is 6 months date the eifective after the commission makes Thus, legislature pursuant its to the 4.” it section recommendations separately could not have been without enacted reference provisions. commission Mich 436 447 Brickley Griffin, Cavanagh, C.J., JJ. and CHALLENGE24 PURPOSE

CHANGE IN challenge plaintiffs the statute also Hobbins during changed purpose ground was its the that on point Legislature. They through passage to the its 313, 329; Clerk, Mich Co Anderson Oakland (1984), establishing that the as 353 NW2d objectives "preclude provision last- are of that provide legislation hasty notice to minute, and to legislation public under consideration the integrally provision to the related . . . .” The is "five-day 4, 26, that no § which states rule” of art printed passed until it has been bill can be possession reproduced each house for the princi- They days. those maintain that five at least ples After the in this statute. have been violated Legislature HB introduced, amended the was bill criminalizing provision assisted sui- 4501 to add plaintiffs say amend- this The Hobbins cide. changed purpose dramatically ment study original bill, commis- to create a which was Legislature argued, was able to Thus, it sion. making suicide a criminal law assisted enact a offense without opportunity

giving people an charged highly and emotional heard on this be Looking legislative for the calendar at issue. day made, the Hob- the amendment was on which only plaintiffs to an act find reference bins Dying. on Death and the Commission create argu- response prosecuting authorities’ 1993 PA 3 cured that the later enactment ment argu- plaintiffs defect, maintain "structurally misstates the unsound” and ment is earlier, majority although Appeals did not County the Court of As noted issue, in both the Oakland this the circuit court address assisted change declaratory judgment action found suicide case and the purpose challenge to be meritorious. v Kevorkian Opinion by Cavanagh, C.J., JJ. They effect of the reenactment of an amended law. contend that the constitutional violation was com- plete enacted, when 1992 PA 270 was and that merely 1993 PA 3 amended the former act respects gave minor and it immediate effect. argument by plaintiffs the fails to take into penalties account that the criminal for assistance to suicide were an interim measure tied to the Legislature’s continuing consideration of issues dying, including related to death and those to be report covered in penalties Thus, the of the commission. the simply providing can be viewed as stable environment while the Commission on Dying, Legislature, Death and the and the citi- zenry questions studied these further. interpreting change pur-

Moreover, cases of pose determining clause indicate that the test for changes purpose if an amendment or substitute subject of the bill is whether matter of the germane origi- amendment or substitute is purpose.25 germaneness nal The test of is much determining like the standard for whether a bill is single object. limited to a above, As we held provision creation of the commission and the penalties placed appropriately criminal were the same bill. agree prosecuting

We also with the authorities problems any with the enactment of 1992 PA 270 were eliminated with the enactment of 1993 plaintiffs PA 3. The do not claim that the later act independently subject change to attack on a purpose ground. principle statutory It is a basic amending replaces construction that an statute provisions. explained the former As we in Lahti v 25See, e.g., Gypsum Revenue, Dep’t United States Co v 363 Mich Detroit, 548; (1961); Commuter Tax Ass’n v 110 NW2d 698 109 Mich (1981); People Clopton, App v App 673; NW2d 117 Mich (1982). 324 NW2d 128 Mich C.J., Cavanagh, JJL 578, 587-588; 99 NW2d 357 Mich

Fosterling, (1959): Lowell, 250 Mich This Court (1930), NW said:

354-356 [230 force, by repealing has a amendatory "An act legislation, from that of mechanics of different Repugnancy is not independent statute. an essential element of specifically implied repeal of sections. The rule is: amended " amended, of a statute is 'Where a section exist, and the section as original ceases part supersedes it and becomes amended purposes as if the statute for all intents always been there.’ 25 RCL amendments had utes [Stat- 159], p . . . 907. § "Nevertheless, the old section is deemed stricken law, provisions carried over have from the their force from the new act, the former. not from (2d Lewis, Statutory Sutherland Construction ed), 237. § plain "It from the authorities in this State is amending the effect of an act and elsewhere that act, in of a specific section of a former the absence clause, saving is to the former section from .strike law, entirely it and substitute obliterate place. effect is not an new section arbitrary its This It adopted by

rule the courts. is logical effect of an amendment 'to natural accomplishes precisely as follows.’ It what the read import. would do Any words violence to the other construction plain language legislature.” PA 1993 PA 3 amended each section of 1992 270, and re- reprinted and the entire text was stated those enacting enacted. The clause . . . .” sections were "amended to read as follows Further, amending it is clear that an statute can original a constitutional defect in the act. remedy Singer, Statutory As noted in 1A Sutherland Con- (5th ed), 22.04, 182, courts p struction § "[s]ome v Kevorkian by Cavanagh, C.J., JJ. have indicated that an unconstitutional act legally given nonexistent and cannot be effect attempt However, an goes it.” amend as the treatise explain:

on to majority A rejected of courts seem to have theory that an unconstitutional act has no exis- tence, purpose at least for the of amendment. The unconstitutional physically act exists in the official reference, statutes of the state and is available for unenforceable, and as it is only purported given amendment is effect. . . . escape legal

This from the fiction that an uncon- stitutional act does not exist is sound. That fiction only serves an no method of act. as a stating convenient method of gives rights imposes unconstitutional act no . . . duties. Amendment offers a convenient

curing defect an unconstitutional at [Id. 183.] principle Michigan

This has been followed in fully applicable cases,26 and is here. The statute under which defendant Kevorkian has been charged 28.547(127), 752.1027; is MCL MSA as amended 1993 PA which was not enacted in change purpose violation of the clause. Accordingly, we would hold that the assisted provisions suicide of MCL 752.1027; MSA 28.547(127) are not void reason of violation of 4, § Const art 24.

A Having Michigan’s found that assisted suicide 26 See, e.g., People 402, Blaay, 404-405; v De 137 Mich 100 NW 598 (1904), Briggs Campbell, Co, Wyant Foundry App v & Cannon 2 Mich 204, 218-219; (1966), Kriger 139 NW2d 336 and v South Oakland Co Pact, (1973) 13-15; App Mutual Aid 49 Mich 211 NW2d 228 (amendment defect), title-object grounds cured rev’d on other (1977). Mich 835 Mich Cavanagh, C.J., JJ". 4, 24, § we not violate Const art

statute does now address whether the statute runs afoul opinion In its of United States Constitution. rejected Appeals May 10, 1994, of this the Court argument. So do we. Const, Am XIV

The Due Process Clause of US "deprive any person of commands the states not to process liberty, property, life, without due of question Thus, . . . .” in this law the threshold encompasses a funda- case is whether the clause mental it includes a right so, and, to commit suicide if whether

right to assistance.

B right rely Those who assert that there is such a heavily Supreme on decisions of the United States "right die” Court cases. abortion and so-called Focusing especially on Planned Parenthood Pennsylvania Casey, of Southeastern 833; 505 US (1992), 2791; 120 L S Ct Ed 2d 674 Dep’t Director, Health, Cruzan v Missouri (1990), 2841; US 110 S Ct 111 L Ed 2d 224 argue right these advocates to end one’s liberty interest, own life is a fundamental grounded personal autonomy in the notion of springing concepts bodily from common-law integrity They and informed consent. further con- integral part protected tend that an of this inter- right assistance, est hence the term "assisted suicide.”27_ plaintiffs object They The Hobbins to the term "assisted suicide.” concede that commit only there is no under the Due Process Clause to suicide, "ordinary” They with or without assert assistance. right mentally competent, terminally persons ill "to make death,” particularly by

the choice to hasten inevitable the use of However, quantities physician-prescribed lethal medications. killing common definition of "suicide” is the intentional any of oneself means, temporal proximity and the of death is irrelevant inquiry encompasses threshold into whether the constitution such a 465 v Kevorkian by Brickley Opinion Cavanagh, C.J., and and JJ. in and its historic We do not discern Cruzan constitution roots an indication that the federal protects right expansive right the to a more than begin life-sustaining medi- refuse to or to continue Casey cal Neither do we find in treatment. precedent to the from which it evolved an intent expand by liberty the interests identified the Court in such a manner.

c present the to Cruzan was first case Supreme United States Court the whether issue grants "right the federal constitution a so-called die.”28497 US 277. The Court asked in Cruzan was validity pro- to decide that the of state statute halting couple hibited a Missouri from the artifi- hydration cial damaged daughter, their nutrition brain- convincing absent clear and evidence of her wishes. upholding majority statute,

In the Missouri right compe- observed that the constitutional of a tent to refuse unwanted medical treatment prior Supreme could be inferred from Court deci- purposes analysis, 497 278. sions.29 Court US For that "assumed” there also was constitu- right. appropriate We thus do not believe that it would be to use euphemistic language, challenge pur- even the context of a that ports plight terminally agree ill. be limited to the of the We with Attorney phraseology the disguise that there is a General risk that such will reality very questions sober we must decide. that 28 generally regarded concerning The case as the landmark decision life-sustaining Quinlan, In refusal medical treatment re (1976), Garger Jersey, NJ 429 355 A2d 647 cert den sub nom v New (1976). Quinlan, Jersey Supreme In US the New Court young right grounded privacy reasoned that a comatose woman had a bodily in the federal constitution to be free from invasion further (a respirator), right treatment was not diminished her incompetency, treat mental ment on her behalf. and that her father could refuse such tracing history involving right to refuse cases treatment, medical the Court discussed the doctrine of informed Mich Cavanagh, C.J., Griffin, JJ. lifesaving hydration nutri-

tional halt emphasized However, tion. liberty the Court such against would to be balanced interest have The interests advanced relevant state interests. preservation life30 and safe- Cruzan—the of the person’s guarding incompetent an wishes of against potential abuses—were found sufficient to evidentiary requirement.31 sustain the Casey years was decided two after Cruzan. validity There, the was asked to the decide Court Pennsylvania of a abortion statute that included requirement, waiting an "informed a consent” period, "spousal provision. and notification” upholding provision,32 all but the notification the "bodily integrity,” consent that embraces the common-law notion of i.e., right every possession "the of individual the and control of his others, person, own free from all restraint or interference of unless unquestionable authority quoting and clear law.” 497 US Botsford, 250, 251; 1000; R Union Pacific Co v 141 US 11 S Ct 35 L Ed (1891). logical corollary The Cruzan Court said that of the patient generally right doctrine of informed consent is that a has a consent, i.e., right not to to refuse treatment. footnote, By although many the Court observed that state courts right generalized had found a to refuse medical treatment in a Rather, right privacy, Supreme constitutional Court had not. properly analyzed the Court had more determined that issue is Cruzan, liberty terms of a Fourteenth Amendment interest. See 279, 7, citing Hardwick, 186,194-195; US n Bowers v 478 US 106 S Ct (1986). 2841; 92 L Ed 2d 140 "properly The Court said the state could decline to make judgments 'quality’ particular may about the of life that a individual enjoy, human life simply unqualified preservation assert an interest in the . .” . . Id. at 282. convincing The Cruzan Court said that the "clear and evidence” appropriate only importance standard was interests not because of the issue, at but also because the standard serves as a "societal judgment” about how the risk of error should be distributed between litigants. stringent proof party "The more the burden of must bear, party the more that bears the risk of an erroneous decision.” In life-sustaining the case of an effort to terminate medical for treatment incompetent person, an simply treatment, however, an erroneous decision to continue treatment quo. stop maintains the An status erroneous decision to such susceptible is not to correction. 497 US 283. respect provision, With to the notification the Court observed: v Kevorkian Opinion by Cavanagh, C.J., JJ. Court reaffirmed essential tenet of Roe v Wade, 705; 410 US 93 S Ct 35 L Ed 2d 147 (1973), (1973), reh den 410 US 959 which includes recognition right of a woman’s under the Due pregnancy Process Clause to terminate a in its stages, early without undue interference from the protected by promise state. That "a personal Constitution that there is a realm of liberty government may which the not enter.” 120 L Ed 2d 695. Casey explained Court that Roe "stands at

the intersection of two lines of . . . .” decisions Although holding 120 L Ed 2d 701. this of Roe was grounded liberty relating in a interest to intimate relationships, family, childbearing, Roe personal autonomy also and be seen as a rule "of

bodily integrity, affinity with doctrinal to to recognizing governmental power cases limits on rejec- mandate medical treatment or to bar its tion.” 120 L Ed 702. 2d The choice of doctrinal category Casey, made no difference to the result in the Court said. It added that Roe also could be generis. classified as sui Id. at 701-702.

Drawing Casey, from Cruzan and the Hobbins plaintiffs33 and defendant Kevorkian advance sev- why eral theories this Court should find that there inescapable biological It regulation is an fact that state with respect carrying to greater the child a woman is will have a far impact liberty on the mother’s than on the father’s. The effect regulation protected liberty doubly state on a woman’s is deserving case, scrutiny in such a as the State has touched only upon private sphere family upon not very bodily integrity the of the but the pregnant woman. L Ed 2d [120 727.] Attorney plaintiffs The General contends that the Hobbins are presenting statute, challenge a facial and that their claim thus any fail if must there is set of circumstances under which the assisted Salerno, 739, suicide statute would be valid. United States v 481 US 745; (1987). plaintiffs argue 107 S L Ct 95 Ed 2d 697 The that Casey interest, changed analysis liberty the for a and that Salerno is applicable. however, positions, not facial Both assume too much. Before a challenge analysis proceed, can it first must be determined Mich Cavanagh, C.J., J<I and suicide, in assisted at protected liberty

is a interest ill.34 All regard terminally least with to theories, course, liberty a fundamental assume in suicide itself.35 interest to assistance parties contend that ending integral part "personal in one’s life is an Casey Court emphasize autonomy.”36 They which approach deciding a "formula” rejected the Fourteenth Amend- rights protected are ment, rights notion that new cannot and also the Instead, described the charac- emerge. the Court protected "liberty” are shared by teristics interests: [marriage, procreation, contracep- These matters

tion, rearing, family relationships, child and edu- cation], choices a central personal most intimate involving the lifetime, in person may make choices personal dignity autonomy, are protected right. light constitutionally is a of our whether there decision that there is no unnecessary suicide, liberty committing interest in it is proper analysis. for us to determine the medically legally No is clear definition of "terminal illness” possible, only hindsight certainty since in is it known with when going suggested someone is illness so to die. definition that has been is an One Note, progressed likely that death within twelve months. statute, Feiger, phrenetic Geoffrey physician: Physi A failed alternative, Michigan patient-oriented cian-assisted suicide 28 in MCL admission to a and a (1994). appears L R n Val Univ Another definition 333.21417; 14.15(21417), eligibility MSA which concerns for hospice: An individual shall be considered have disease or condi- if, prognosis opinion physician, tion with a the individual’s death is terminal of a anticipated within 6 months after the hospice. date of admission to the attempt liberty indepen An to find interest assisted suicide liberty dent of a interest in suicide itself cannot If Due succeed. encompass right Process Clause does not a fundamental to end one’s life, encompass right ending it cannot to assistance in one’s life. 36 points right personal One commentator out that assertion of a of " ” Tsarouhas, autonomy begs question, '[a]utonomy the to do what?’ suicide, against legal The case assisted Ohio NU LR (1994). v Kevorkian Opinion by Cavanagh, C.J., JJ. liberty protected by central to the the Fourteenth At liberty right Amendment. the heart of is the to existence, concept define one’s own meaning, universe, mystery the and of the of human life. Beliefs about these matters could not the define personhood attributes of they were formed under compulsion of the State. L Ed 2d [120 698.] proponents argue of assisted suicide further right analogous that commit suicide is right treatment, to refuse unwanted medical support, contraception, discontinue life to use They to choose abortion. submit that the decision right to end one’s life is the ultimate of self-deter- abridge mination, and that the state cannot right compelling unless it can articulate a inter- est.37 adopt

The advocates of assisted suicide ask tous reasoning of a recent federal decision that Washington’s invalidated the State of criminal prohibition against assisted suicide. The court held Compassion Dying Washington, Supp in 850 F (WD 1994),38 Wash, that of a terminally person physi- ill to the assistance aof committing analogous cian suicide is right of abortion because both fall within the " personal liberty government 'realm of which the may not enter.’ ”39_ acknowledging may regulate While the state assistance in in suicide, actively discourage suicide, committing or even one from life, preserving proponents order assisted suicide maintain that extend to to advance its interest legitimate the state’s interest does not prolonging suffering terminally by criminalizing ill unnecessary proper suicide assistance. We find it to consider regulatory disagree reach of the state’s interest because we with the premise protected constitutionally

foundational there exists a liberty interest to commit suicide. 38Appeal pending Appeals in the United States Court of for the 94-35534). (Docket Ninth Circuit No. appears ruling The federal court to have limited its to situations performs in which the who wants to die the final act that 447 Mich 436 Opinion Brickley Griffin, Cavanagh, C.J., and JJ. in court that the rationale

The federal found right prescriptive” Casey the to was "almost Casey, that, one’s life. The court held under end the state cannot proscribe suicide if such a assisted unduly right the to commit ban would burden purpose place suicide, i.e., if is to a the of the ban path person in the substantial obstacle seeking right. to the exercise right The federal court also found that of a terminally ill to commit with suicide assis- not in tance does differ a constitutional sense from right recognized the taining in Cruzan to refuse life-sus- premise

medical treatment.40 The essential holding that, instance, of the court’s was in each liberty interest is "the freedom to make according choices to one’s individual conscience per- about sonal those matters which are essential to autonomy dignity.” and basic human Id. at 1461.41 disagree

We with the federal court that either Casey preordains Supreme Cruzan or Court would find that that persons, including

any terminally liberty ill, have a interest suicide protected by that the Fourteenth Amendment. right misapprehend Those who assert such a holdings nature of those cases._ actually brings right about death. The case concerned the commit to "by taking physician-prescribed drugs.” suicide a lethal dose Id. at 1456. recognized Supreme only The court that Court had "as purposes analysis, sumed” such an interest expressed Cruzan for but squarely presented, confidence that if the issue was such a right would be found. regard, right personal autonomy In this we observe that a independent recognition dignity, cannot exist of a of human concept dignity it would violate the of human to measure the value of person’s person’s physical life and mental condition. See Cruzan, Further, persons possess right 282. US because all a basic regardless personal autonomy, physical to tion, of their or mental condi principled restricting there would be no basis for terminally inevitability commit suicide to the nothing ill. The of death adds analysis. to the constitutional Kevorkian Cavanagh, C.J., JJ.

D Cruzan, the Court was able "assume” protected liberty interest in the withdrawal of life- sustaining it medical treatment because was able distinguish artificially between acts that sustain artificially Although life and acts that some curtail life. suggest this is a distinction without significance—a meaningless constitutional exercise gymnastics—the majority in semantic Cruzan dis- agreed42and so do we.

Indeed, the notion that there is a difference between action and inaction is not unfamiliar example, the law. For the distinction between (the "misfeasance” and "nonfeasance” distinction inaction) passive between active misconduct and is deeply negligence. rooted the law of The reason for the distinction is said to lie the fact that a defendant creates a new risk of harm misfea- merely sance, but fails to benefit another non- explains, duty feasance. As Dean Prosser to do wrong legal duty, duty protect no is a while the to. against wrong part, obliga- is, for the most a moral (5th ed), pp Keeton, 56,§ tion. Prosser & Torts 373- 374.43

Similarly, suicide an whereas involves affirma- life, tive act to end a the refusal or cessation of 42Further, the Cruzan Court was careful not to extend decision its concerning in that case even to other issues medical treatment: deciding question magnitude "a such and P]n

importance tempt, part ... it is the of wisdom not to at- [better] statement, any general possible phase every to cover subject.” US [497 277-278.] suggests Professor Kamisar the distinction is based more on logic. pragmatic compromise and than He reasons that historical what on at Dean of Yale Law issue are what Guido Calabresi School choices,” i.e., "tragic called choices that confront us when fundamen goal permit clash. The is to find "solutions that us to assert tal beliefs cleaving Concerning that we are to both beliefs in conflict.” the issue 447 Mich 436 Opinion by Cavanagh, C.J., JJ!

life-sustaining medical treatment simply permits course, life to run its unencumbered by contrived intervention. Put another suicide way, frustrates the natural by introducing course an agent outside death, to accelerate whereas the refusal or with- drawal of life-sustaining medical treatment allows i.e., nature to proceed, death occurs because of the underlying condition.44

The distinction between the withdrawal of life- sustaining medical treatment recog- suicide is nized in the Guidelines for State Court Decision Making In Life-Sustaining Treatment, Medical Na- (2d tional Center for ed), State Courts pp 143-145 (1992). The guidelines include the following: There significant are legal moral and distinc- letting tions between medications to relieve process) (including die the use of suffering during the dying (assisted suicide/euthanasia). killing die, letting In underlying suicide/euthanasia, the cause of death is seen as the process disease trauma. assisted the cause of death is seen as inherently lethal action itself. agree

We that persons who opt to discontinue life-sustaining not, medical effect, treatment are in committing suicide. There is a difference between choosing a natural death summoned by an unin- vited illness or calamity, and deliberately seeking refusing begin of life-sustaining treatment, to or to continue medical (a) respecting wishes, patient’s the conflict suffering, is relieving between putting seemingly treatment, an end to futile medical (b) affirming supreme and salutary principle maintaining value of life and protects life, that the law all human no matter how poor quality. professor The concludes that the distinction between "letting perfectly assisted suicide then logical, die” is not neat and asks, Kamisar, suicide, "But what line is?” After assisted what (June next?, Lawyer 13, 1994), pp Texas 1-2. 44A suggests close examination of the medical-treatment cases they right fail, all, do not establish a to choose "nonlife” at but rather a progression—a that, progression to choose life’s natural without everyone process dying. includes for of v Kevorkian Cavanagh, C.J., JJ. by resorting to life terminate one’s to death-induc- ing process measures unrelated to the natural of McKay Bergstedt, dying. 808, 820; v Nev (1990). P2d 617 affirming a lower court decision to discon- profoundly for a re-

tinue artificial sustenance persistent vegetative tarded woman who was in a Supreme state, Judicial Court of Massachu- similarly emphasized prin- setts the "well-settled” withdrawing refusing life-sustaining ciple that or equivalent attempting medical treatment is not to Guardianship Doe, suicide. Jane Mass (1992), 521; 583 NE2d 1263 cert den sub nom Doe (1992). vigorous Gross, 503 US dissents support in Doe were right offered in of a broader not recognition die, to rather in of the but state’s paramount protecting in interest life.45_ instance, deciding dissenting justice, for the court One accused play complained "to involved itself in the matter God.” 411 Mass 525. He the court had ostensibly protect to the interests of the vulnerable, advantage patient’s but then had taken of the vulnerabil social, argument ity "to fashion an that she is a medical and familial simple, longer burden and that her fundamental needs should no be majority, met.” 411 Mass 529. other said that the Two dissenters effect, approved They had the notion of suicide. wrote: Society’s respect every for the value of human life without condition, law,

reference to its the cornerstone of American recognition legal right inconsistent with a State’s commit sia of a to suicide, suicide, engage voluntary assist euthana- (mercy killing suffering accordance with the wishes of the person). "The to life life those whom has become burden— hopelessly fatally wounded—nay, of those who are even the lives of criminals condemned to protection diseased or death, are under the law, equally of the as the lives of those who are in enjoyment, the full tide of life’s live.” tance, and anxious continue Recognition dignity of human life demands resis- concession, imaginary than to the real or death rather pain, depression, wishes of those who are afflicted with a sense worthlessness, personal of others. A humane including or a sense of burdensomeness kind, every society provides support support, moral to those who are burdened in order they may .... that live suicide, legal acceptance reasonably it that of Can be doubted suicide, voluntary presents euthanasia a serious assisted 447 Mich 436 Opinion by Cavanagh, C.J., Jo-

in its first case involving the cessation life- treatment, sustaining medical Kentucky Su- preme Court found that withdrawal of nutrition and hydration persistent from a in a vege- state, tative and with irreversible brain damage, fits the medical definition "permit[ting] Elston, of dying.” DeGrella v process natural 1993). SW2d The court (Ky, cautioned that it was not engaging "an objective inquiry life, into the quality of but a subjective inquiry patient into whether wishes the continuation procedures medical to interdict 'the natural ” process of dying.’ point At the where the life-pro- withdrawal of longing medical solely treatment becomes another person’s the life, patient’s decision about the quality of life,” individual’s "inalienable as so declared in the United States Declaration of Inde- (1) pendence Kentucky protected by Section One outweighs any considera- of our Constitution, life, tion of quality or the value of the life, at stake. at [Id. 702.] These and other recent highest decisions of the courts of other states bolster our conclusion that Cruzan does portend not the United States Supreme Court would find a fundamental liberty suicide, interest let suicide, alone assisted protected Due Process Clause of the Fourteenth Amendment.

E Neither does Casey provide support for posi- acceptance involuntary (mercy killing risk that euthanasia individual) not chosen the affected is soon to follow? [411 Mass 531-532. Citation omitted.] v Kevorkian Brickley Opinion C.J., Griffin, Cavanagh, JJ. and and encompasses a Due Process Clause tion that Casey, right suicide. In fundamental to commit directly with the estab- not concerned Court was right, but rather with whether lishment of a new right previously from the Court should retreat declining recognized to overrule in Roe v Wade. relying heavily Roe, of stare on doctrine and emphasized decisis, that abortion cases the Court unique. L 698. are 120 Ed 2d Although Casey in was not called the Court newly upon the merits of a asserted to determine right, process that the Due it is well settled due procedural and Clause shelters both sub- Process rights. Casey, 120 L 695. The latter Ed 2d stantive rights selectively that have been includes those incorporated Rights, the Bill of and those from to be "fundamental.” that have been found argues determining in fun- The state that those rights expressly in, not identified but damental protected by, Clause, the Due Process nonetheless guided analysis must be a search for right implicit in the con- whether the asserted is cept liberty deeply rooted in our ordered history traditions. See Palko v Con- nation’s necticut, 319, 325-326; 149; 82 L 302 US 58 S Ct Ed (1937), Snyder Massachusetts, 291 US 288 97, 105; (1934).46 330; 78 L Ed 674

54 S Ct urge this Court to find a fundamental Those who liberty the Due interest in suicide under Process arguing challenge analysis, Clause the traditional Supreme Court articulated the United States inquiry employed Casey new, in broader to be process adjudication due claims. the They substantive right cannot be a that even if such a submit Casey, it nonetheless exists as inferred from D, 110, 121-122; 109 S Ct 491 US 46 See also Michael H v Gerald (1989). 2333; 105 L Ed 2d 91 Mich Cavanagh, C.J., JJ. previ- liberty rational extension of those interests ously recognized principled application under a proper determining the serted Clause.47 test for whether an as- protected by is the Due Process acknowledge We the United States Su- preme Casey Court said that courts are to judgment assessing exercise reasoned claims of process, analysis substantive due and that susceptible expression simple "not as a rule.” 120 L However, Ed 2d 697. we need not resolve the debate over whether the Court established a new principles test because further examination of the Casey discussed in reveals that the constitutional inquiry described in that case does not fall so far "implicit concept outside the liberty” in the of ordered "deeply history and rooted in and tradi- analysis tion” as to lead to a different conclusion here. present

Thus, in the context, consistent with the quoted approv- observations of Justice Harlan48 47 suggested by curiae, As important various amici it is analysis in a end-of-life process right of substantive due that the asserted be framed precise and involving neutral manner. This is critical in cases questions, particularly susceptible which are to emotion- terminology syllogisms. approach laden States and flawed The of the United Supreme assessing proposed right Court whether a is "fundamental” inquiry by has been to applying narrow the threshold (1) principles: three specific activity the focus should be on the that proponents argue protected constitution, taking the into account (2) facts, all relevant the formulation should not be so broad as to encompass considerations, logically separate activities that are distinct and involve (3) reasonably and the formulation should accommo Bopp Coleson, date all of the interests at stake. & Webster and the process, (1990). Duq future of substantive due L R 281-291 See Reproductive Services, 490; Webster v 3040; Health 492 US 109 S Ct (1989). 106 L Ed 2d 410 question presented in this case thus is not whether a right self-determination, has a constitutional personal existence, or a right of or a to define right personal choices, or a to make intimate and right Rather, question not to suffer. that we must decide is encompasses right and, whether the constitution a to commit suicide so, right if it includes a to assistance. whether Ullman, 497, 542; Poe v 367 US 81 S Ct 6 L Ed 2d 989 Kevorkian Cavanagh, C.J., and JJ. upon Casey, expanded ingly L Ed 2d 697-698, must whether asserted we determine right arises from a rational suicide commit recognition tradition, of or whether of evolution departure right radical from would be a such princi- precepts. conclude historical We guide analysis process ples due substantive recognition support commit do not suicide.

Although are documented acts of suicide history England throughout recorded widespread nation, find no indication of this we approval. contrary, To the suicide was societal significant stigmatizing offense, con- with criminal sequences.49 practical policy matter, As a and for reasons, in most suicide was not criminalized Scott, Criminal LaFave & Substantive states. Law, § 7.8, recognized pp 246-251. Lawmakers prop- futility punishment harshness of consequences. erty Id. forfeiture and other Also, it committed assumed one who was suffering frailty a mental of one suicide was from necessary another, and thus lacked sort O’Dowd, Marzen, crime. mens rea to commit a right?, 24 Balch, A constitutional & Suicide: Crone (1985) Duq 1, 63, 69, 85-86, R 88-89 L . a accorded no such who assisted suicide was

One (1961) (Harlan, J., jurisdictional dissenting on from dismissal grounds). law, "self suicide sometimes was referred to as At common property Consequences an the forfeiture of and included murder.” ignominious 795, Glanville, Tsarouhas, supra citing n 36 at burial. (1957), Law, Sanctity 261-262 Life and the Criminal and (Oxford: Blackstone, England Laws of Claren- on the Commentaries Press, 189, 1769), pp 190. don Mich JJ) Cavanagh, C.J., and

concession, At however.50 the time the Fourteenth twenty-one ratified, Amendment was at least thirty-seven existing (including eighteen states states) thirty ratifying proscribed assisted suicide either statute or as a common-law of- fense. Id. at 76.

Presently, jurisdictions a substantial number of specific have statutes that criminalize assisted suic provides ide,51 and the Model Penal Code also for penalties.52 nearly Further, criminal all states ex exception physician-assisted There is no historical for suicide. To contrary, traditionally the contrary such regarded involvement has been as Hippocratic oath, following which includes the sen- " please prescribe tence: advice which 'To deadly drug, give no one will I a nor ” cause his death.’ Dictionary Steadman’s Medical (5th Unabridged Lawyers’ Ed), p 650. 51Alaska, 11.41.120(a)(2); Arizona, Alas Stat Ariz Rev Stat Ann 13-1103(A)(3); Arkansas, 5-10-104(a)(2); California, Ark Code Ann Cal 401; Colorado, 18-3-104(l)(b); Penal Code Conn Gen Stat Ann Connecticut, Colo Rev Stat 53a-56(a)(2); Delaware, Ann, 11, Del Code tit 645; Florida, 782.08; Georgia, 16-5-5(b); § Fla Stat Ann Ga Code Ann Hawaii, Illinois, 707-702(l)(b); Comp Ann, Hawaii Rev Stat Ill Stat ch 720, 5/12-31; Indiana, 35-42-1-2; Kansas, § Ind Stat Ann Kan Stat Ann 21-3406; Kentucky, Ky 216.302; Maine, Rev Stat Ann Me Rev Stat Ann, 17-A, 204; Michigan, 15, 1992, tit § Act of December 1992 PA (creating Michigan dying prohibit commission on death and ing pertaining assistance); Minnesota, certain acts to suicide Minn 609.215; Mississippi, Stat Ann 97-3-49; Missouri, Miss Code Ann Mo 565.023; Montana, Ann 45-5-105; Nebraska, Stat Rev Stat Mont Code Ann Neb 28-307; Hampshire, 630:4; New NH Rev Stat Ann New New Jersey, York, 2C:ll-6; Mexico, NJ 30-2-4; Stat Ann New NM Stat Ann 120.30; Dakota, NY Penal Law 12.1-16-04; North ND Cent Code Oklahoma, Ann, 21, 818; Pennsylvania, Okla Stat tit 813 to §§ 18 Pa 2505; Rico, Ann, 33, Cons Stat Ann Dakota, Puerto PR Laws tit South § 22-16-37;Tennessee, SD CodLaws Ann 39-13-216; Tenn Code Ann Texas, 22.08; Island, Virgin Code, 14, Tex Penal Code Ann VI tit 2141; Washington, 9A.36.060; Wisconsin, § Wash Rev Code Ann Oregon Wis Stat Ann 940.12. The State of also has a statute that 163.125(l)(b). However, forbids assisted suicide. Or Rev Stat we note Oregon passed voters a ballot initiative called the Death with Dignity act, permits Act on physicians, November 1994. The which circumstances, prescribe under certain lethal medication for termi nally persons, ill was scheduled to take effect December 1994. However, a federal temporary district court has restraining issued a pending hearing order on the matter. 52The Model Penal prohibits Code of the American Law Institute grants privilege assisted suicide and to those who use force to prevent 210.5, 91, 3.07(5), p pp suicide. Sections 104-105. People v Kevorkian Opinion by Cavanagh, C.J., JJ. pressly disapprove of suicide and assisted suicide dealing powers either statutes with durable attorney "living situations,53 in health-care inor provide addition, will” statutes.54 all states for involuntary persons commitment of who illness,55 harm themselves as the result of mental nondeadly and a number states allow the use of attempts.56 force to thwart suicide 53See, 700.496; 27.5496, example, permits for MCL MSA which appointment the states that to MCL provisions "patient patient’s of a advocate” to act on if behalf patient competent is not to do so. Subsection 20 of the statute designation patient of a advocate "shall not construed be condone, allow, authorize, permit, approve suicide or homicide.” 27.5496(20). 700.496(20); jurisdictions MSA Other with similar governing powers attorney in statutes durable in health Columbia, care situations include the District of DC Ann Code Illinois, Ann, 21-2212; Ann Mass Ann North 755, 40/50; Indiana, Comp Stat ch Ind Code § 30-5-5-17(b);Iowa, 144B.12.2; Massachusetts, Iowa Code Ann Laws, 201D, York, 2989(3); ch New NY Pub Health § Dakota, 23-06.5-01; Island, ND Cent Code and Rhode RI Gen Laws 23-4.10-9®. provisions "living Jurisdictions that have such will” statutes Alabama, Alaska, 22-8A-10; 18.12.080®; include Arizona, California, Ala Code Alas Stat Ann36-3210;Arkansas, ArkCodeAnn20-17-210(g); ArizRevStat Colorado, Safety 7191.5(g); Cal Health & Code Colo 15-18-112(1); Columbia, 6-2430; Rev Stat Florida, District of DC Code Ann 765.309(1); 88-4111(b); Georgia, Ann Fla Stat Ga Code Ann Hawaii, 327D-13;Illinois, Ann, Comp Hawaii Rev Stat Stat ch Indiana, Iowa, 35/9®; 16-36-4-19; Ind Code Ann Iowa Code Ann § 144A.11.6; Kansas, 65-28, 109; Kentucky, Ky Kan Stat Ann Rev Stat Louisiana, Maine, 311.637; 40:1299.58.10.A; Ann La Rev Stat Ann Me Ann, 18-A, 5-711(g);Maryland, Rev Stat Ann Code Ann Mont Code Ann vada, tit Md Health Gen Code § 5-611(c);Minnesota, 145B.14; Mississippi, Minn Stat Ann Miss Missouri, Montana, 41-41-117(2); 459.055(5); Mo Ann Stat Nebraska, 50-9-205(7); 20-412(7); Neb Rev Stat Ne 449.670; Hampshire, Nev Rev Stat Ann New NH Rev Stat Ann Carolina, 137-H:10(II); 90-320(b); Dakota, North NC Gen Stat North Ohio, Ann, 23-06.4-01; Code tit ND Cent Code Ohio Rev 2133.12(D);Oklahoma, Ann, 63, 3101.12(g);Oregon, Okla Stat tit § § 5402(b); 127.645(1);Pennsylvania, Rev Stat 20 Pa Cons Stat Ann Or Rhode 44-77-130; Island, 23-4.11-10®; Carolina, RI Laws South SC Cod Ann Gen Dakota, Texas, 34-12D-20; SD Laws Ann Tex South Cod Utah, 75-2-1118; 672.020; Safety Ann Code Ann Health & Code Utah 54.1-2990; Washington, Virginia, Ann Rev Code Ann Va Code Wash 16-30-10; Wisconsin, 70.122.100; Virginia, W Va Code Wis West 154.11(6). Ann Stat 14.800(401)(a). See, 330.1401(a); e.g., MSA MCL 5-10-104(a)(2); 11.81.430(a)(4); Rev Ark Code Ann Colo Alas Stat 480 Mich by Opinion Cavanagh, C.J., Griffin, JJ. and conclude, It is thus to incorrect on the basis of penalties absence criminal for an act of pragmatic suicide itself and the existence of a capacity suicide, to commit that there is a consti- right right tutional to commit suicide.57Such a is expressly recognized anywhere not in the United States Constitution or in the decisions of the Supreme United Court, States and cannot be rea- sonably fact, inferred.58 In as we observed earlier opinion, in this those courts that have found a right begin to refuse to or to continue life-sustain- ing only medical treatment have done so after concluding wholly that such refusal different from an act of suicide.59 Supreme repeat-

Indeed, the United States Court edly unequivocally sanctity has affirmed the rejected human life and the notion that there is a right any of self-destruction inherent common- 18-l-703(l)(d); 703-308(1); Ky Stat 503.100(l)(a); Stat Ann Pa Cons Hawaii Rev Stat Rev Stat Ann 563.061(5); 627:6(VI); Mo Ann Stat Stat NH Rev Ann NJ 2C:3-7(e); 35.10(4); 161.209; NY Penal Law Or Rev Stat 508(d); 939.48(5). Ann Stat Wis Stat Ann apparent analysis claims, process For reasons in our of the due reject argument Michigan’s we also invalid who enjoyed by terminally sustaining not the same for assisted suicide statute is equal protection terminally persons because it denies to ill help ending lives, i.e., right want their it denies them a persons opt forgo ill who or discontinue life- explained, medical treatment. As we the two situations are purposes analysis. of constitutional Supreme Rodriguez The Court of Canada said v British Colum bia, expressly permits (1993), 107 DLR4th democracy 401-404 that no western contrary, assisted suicide. To the the criminal codes conduct, of most countries include a blanket ban of such and such proscriptions adjudged rights. not have been to be unconstitutional or con trary to fundamental human to refuse medical treatment meets the "ordered lib erty” underpinnings” and the "historical tests it because is rooted in consent, the common-law doctrine of informed which embodies the bodily integrity. person may notion life-sustaining A refuse medical bodily integ treatment because the treatment itself is a violation of rity. enjoys support, Suicide no such foundational however. When one life, agent acts to end one’s it is the intrusion of the lethal bodily integrity. violates v Kevorkian Bkickley Cavanagh, C.J., JJ. Cruzan, phrase. or constitutional law doctrine observed: majority States—indeed, matter, all general As a commitment nations—demonstrate their civilized treating as a crime. life homicide serious Moreover, country of States in this majority penalties who imposing criminal on one have laws suicide. not think another to commit We do assists a State is face of required to remain neutral in the voluntary physi- informed and decision an cally adult starve to death. US able 280.] [497 would foregoing the basis the we analysis, On the commit is neither right hold that suicide nor concept liberty in the of ordered implicit tradi- rooted this nation’s and deeply history depar- be impermissibly tion. It would an radical tradition, princi- and from the existing ture from tradition, that that underlie to declare ples right the protected by there is such fundamental Due Process Clause.

F the keenly are aware of intense emotions We philosophies moral that character- competing general, about suicide in present ize debate particular. suicide in The issues do and assisted However, simple not lend themselves answers. permit not matter does complexity while questions, the critical constitutional us to avoid it, the guise does under of constitutional neither permit expand judicial us to interpretation, Court, question especially of this where powers left policy appropriately is a one clearly resolution, through for either its citizenry Mich Opinion by Cavanagh, C.J., JJ. representatives through elected a ballot initia- 2, § tive under Const art 9.60 We would hold that the Due Process Clause encompass the federal constitution does not suicide, fundamental to commit with or with- regardless assistance, out of whether physician. would-be assistant is a

vi A Finally, presented turn we to the issue in the County involving Oakland Sherry case the deaths of Marjorie Miller and Wantz. Their deaths Michigan’s occurred before the enactment of ban question suicide, on assisted and the is whether prosecuted defendant Kevorkian can be for his role in the deaths. suffering

Each woman was said to be from a great pain condition that caused her or was se- verely disabling. separately sought Each had de- ending fendant Kevorkian’s assistance in her life. The women and several friends and relatives met nearly We are mindful Justice Cardozo’s admonition half a century ago: judge, free, wholly "The even when he is is still not free. He pleasure. knight-errant, is not to innovate at He is not a roaming pursuit beauty at will in of his own ideal of or of goodness. inspiration princi- He is to draw his from consecrated ples. yield spasmodic sentiment, vague He is not to to unregulated benevolence. He is to exercise a discretion in- tradition, by analogy, disciplined by formed methodized system, primordial necessity and subordinated to 'the of order enough in the social life.’ Wide in all conscience is the field of Process, discretion that remains.” Nature of the Judicial [The quoted Georgetown College, in In re President & Directors of

Inc, (1964) App J„ (Burger, 118 US DC F2d dissent), concurring (1964).] cert den 377 US 978 v Kevorkian Opinion by Cavanagh, C.J., JJ. County the defendant at a cabin in Oakland on October 1991.

According testimony presented to the at preliminary plan examination, defendant’s was to use his "suicide machine.” The device consisted strapped of a board to which one’s arm is prevent movement, a needle to be inserted into a tubing, blood vessel and attached to iv and con- tainers of various chemicals that are to be released through Strings the needle into the bloodstream. fingers person are tied to two of the who strings clips intends to die. The are attached to on tubing the iv that control the flow the chemi- explained by person witness, cals. As one releasing drug hand, raises that called metho- by expert hexital, which was described witnesses fast-acting as a barbiturate is used under controlled circumstances to administer anesthesia rapidly.61 asleep, When the falls the hand drops, pulling string, the other which releases clip potassium another and allows chloride to flow body into the in concentrations sufficient to cause death. times,

The defendant tried several without suc- cess, to insert the suicide-machine needle into Ms. Miller’s arm cabin, and hand. He then left the returning cylinder several hours later a with gas apparatus. carbon monoxide and a mask He cylinder, attached a screw driver showed Ms. Miller how to use the tool as a lever to open gas valve.

The defendant then turned his attention to Ms. inserting Wantz. He was successful in the suicide- machine needle into her arm. The defendant ex- plained to Ms. Wantz how to activate the device so large enough recipient stop breathing.

61 A dose can cause the Mich Opinion by Brickley Cavanagh, C.J., Griffin, and JJ. drugs as to allow the to enter her bloodstream. activated,62 The device was and Ms. Wantz died.63 placed apparatus The defendant then the mask only preliminary on Ms. Miller. The examination who was at the witness

present at the time said that opened gas by pulling Ms. Miller screw driver. The cause of her death mined to be carbon-monoxide the the valve on deter-

was

poisoning.

The defendant was indicted on two counts of open He murder. was bound over for trial follow- ing preliminary However, examination. in circuit quash court, the defendant moved to the informa- charges, tion and dismiss the and the court granted the motion.

B Appeals People A divided Court of reversed. preliminary actually No one who at the testified examination only persons witnessed the activation of the device. The in the cabin decedents, defendant, at that time were the the and the defendant’s sister, walking away who since has died. Ms. Wantz’ husband was from the cabin. He testified as follows: Q. pulled string? You don’t know who the pull string A. I have no idea. She knew that she had to the

when I left. Q. pull string You don’t know if she tried to it didn’t all, pushed you? Kevorkian work and her hand at do this, say process A. I can I left the when room she was in the trying pull string. Q. pulled string? you’re You don’t know who That’s what telling me? you process trying pull A. I can tell she in the was room, string string. pull when I left the I but did not see her only thing you The I can take and tell is once I left the room, say, "Marj, Dr. Kevorkian did—I heard Dr. Kevorkian you up,” your only thing have to hold hand and that is the I know. pathologist performed autopsy who testified that there blood, was a lethal because level of methohexital in Ms. Wantz’ but that body’s death, potassium release of on no conclusions regarding potassium be drawn could chloride. v Kevorkian Cavanagh, C.J., JJ. App Kevorkian No 205 180; Mich 293 NW2d (1994). Appeals majority princi- The Court of relied pally People Roberts, on v 211 Mich 178 NW (1920). suffering Roberts, the defendant’s wife was multiple great from advanced pain. sclerosis and in previously attempted and, She had suicide according to the defendant’s statements at plea proceeding, requested provide that he her poison. agreed, placed glass with He and poison within her reach. She drank the mixture charged and died. The defendant was with murder. pleaded guilty, He and the trial court determined degree. the crime to be murder in the first appealed. argued, among The defendant He things, other that because suicide is not a crime in Michigan, and his offense, wife thus committed no acting accessory he committed none in as an be- rejected argument, fore the fact. The Court explaining:

If living we were in a purely common-law atmos- phere with a strictly practice, common-law charged defendant accessory being were with guilty as an suicide,

of the argu- offense counsel’s persuasive ment would be more it than is. But charged defendant is not with that offense. He is charged with murder theory people and the of the was that he by committed the crime means of poison. He has come into court and confessed that poison he placed mixed with water and it within reach, request. her tion, but at her important ques- therefore, arises as to whether what defen- dant did by poison. constitutes murder means of Mich [211 195.] discussing case,

After a similar Ohio Blackburn (1872), State, Ohio St the Roberts Court concluded: Mich Cavanagh, C.J., JJ. opinion are that when defendant We placed it paris green water and

mixed the with put wife to her to an within reach of his enable life, suffering putting to her end to her an end poison means of within guilty he was the of murder of the statute, meaning though she re- even deliberately quested placed own other By him to do so. this act he taking her within her reach the means of life, which she could have obtained no way by helpless of her condition. reason [211 Mich 198] case, had

In the instant defendant Kevorkian argued that the discussion of this issue Roberts the defendant in that case had was dicta because controlling pleaded guilty murder, thus authority People Campbell, App 124 Mich was v (1983).64 Appeals 333; 335 Court NW2d The rejected majority that view and said thht Roberts presented in the controlled the issue instant case.

c agree Appeals that the We with the Court 64 Campbell, drinking the the defendant been decedent and had talking heavily suicide, the home. The decedent had at decedent’s been about gun. and the fact that he did not have a The defendant first, gun. accept offered to sell the decedent a At the decedent did not However, alternately Campbell persisted in en the offer. defendant couraging ridiculing Eventually, provided and him. the defendant the gun with a and five shells. The defendant and the decedent’s decedent left, later, girl friend and some time the decedent shot himself. The charged open murder. defendant was with Although persuade the defendant failed to the circuit court to information, Appeals Among quash things, the Court of reversed. other the Supreme had the Court said that more recent Court decisions good that Roberts remained law. The Court also noted "cast doubt” judge in "assumed that a murder had that the trial Roberts had App only degree of that 124 Mich occurred and considered 337. the crime.” Campbell panel further found that the defendant did not have "hoped” required "present only intention to kill.” that the decedent would kill He himself, degree '.'hope” of intent is not charge required to sustain a of murder. Id. at 339. People v Kevorkian Opinion by Cavanagh, C.J., JJ. Roberts holding in was not dicta.65 While it is true that pleaded guilty defendant Roberts of placing poisonous wife, mixture at the of his bedside sick knowing that intended use it she commit suicide, nothing opinion indicates this Court based its affirmance of the conviction of first-degree murder on the fact that the conviction plea. stemmed from a guilty However, it is not sufficient in the instant case Roberts was to decide simply holding not dicta. must further We determine whether Roberts Peo- viable, because, as remains noted ple Stevenson, v 383, 390; Mich NW2d 143 (1982): recognized often authority,

This Court has its duty, change and indeed its the common law required[66] change when The crime of murder has been classified and categorized Legislature, 750.316; MCL see 750.317; 28.549, MSA 28.548 MCL MSA but the definition murder has been left People Aaron, v common law. 409 Mich Scott, (1980); NW2d 304 6 Mich 287 (1859). constitution, abrogated Unless Court, Legislature, or this ap- the common law intentionally up, "When a last resort court of takes discusses to, question germane though necessarily and decides a decisive a not of, controversy, such not a dictum decision is but is judicial recognize act of the court which it will thereafter as a Cartage Co, Inc, binding v decision.” Chase American 176 Wis (186 235, [1922]). Comm, 238 NW 598 v Public Utilities [Detroit 267, 299-300; (1939).] 288 Mich 286 NW 368 66 Aaron, 672, Citing People 713; (1980); (1979); v 409 Mich 299 NW2d 304 Heights, Sterling 638; Placek v v 405 Mich 275 NW2d 511 Serafin, 629; (1977); Serafin 401 Mich 275 NW2d 461 Beech Grove Comm, 405; Rights Investment Co v Civil 380 157 Mich NW2d 213 (1965). (1968); Auditor, Myers v 375 Genesee Mich 133 NW2d 190 436 Mich by Cavanagh, C.J., JJT. supra plies. Aaron, 722- 1963, 3, § 7; at art Const 723. " definition, '[m]urder is Under the common-law memory person and discretion of sound where unlawfully being, any reasonable creature kills prepense peace or state, malice with ” implied.’ express Aaron, aforethought, or either quoting People supra Potter, 5 Mich 713, v at (1858). finding Implicit in this definition is a performed that caused an act the defendant of crimi- a defendant another. To convict death of proven that death oc- homicide, it must be nal of the defen- and natural result as a direct curred Barnes, 196; 148 182 Mich act. v dant’s (1914). People Flenon, 42 Mich See also NW ("a (1972) App 457, 460; defendant’s 202 NW2d only [first-degree should be murder] conviction and direct there is a reasonable sustained where death”). injury connection between causal Early a murder convic- indicate that decisions providing merely the means on tion be based However, few commits suicide.67 which another any, early jurisdictions, com- if have retained assisting in a suicide is murder. mon-law view that majority statutory scheme The modern separate crime, suicide as a states treats assisted penalties those for murder. less onerous than with e.g., our See, PA which was enacted Legislature.68 own 67 Marzen, supra 79-81. See at addition, incorporates this n the Model Penal Code See also 51.

view: (1) person may Causing A be Suicide as Criminal Homicide. causing to commit criminal homicide for another convicted of force, only purposely causes such suicide duress

suicide or if he deception. (2) Independent Aiding Soliciting A an Offense. Suicide as purposely to commit suicide aids or solicits another who People v Kevorkian by Opinion Brickley Cavanagh, C.J., Griffin, JJ. and and Recent decisions draw a distinction between ac- participation in tive a suicide involvement in and leading up suicide, the events to the such as providing Frequently, the means. these cases arise the claim in context of a the defendant the prosecution brought should have been under an generally assisted suicide statute. The courts have prosecuted held that a be for murder person’s beyond if the went acts the conduct that the assisted suicide statute was intended to cover. example, People App Cleaves,

For in v 229 Cal (1991), Rptr 3d Cal the defendant was charged first-degree strangula- with murder the tion death of another man. The trial court had request jury a refused defense to instruct the on statutory aiding abetting the offense of and a jury suicide, and the convicted him of second- degree murder. deciding

In whether an instruction on the statu- guilty felony degree is such suicide or an meanor. a the second his if conduct causes attempted suicide, of a otherwise misde- Code, Penal [Model § 210.5.] commentary provision detailing against to its sanctions suicide assistance, the drafters of Model Penal Code discussed the ration- recommendations, supporting expressing ale over the its as well as concern severity penalty imposed in Roberts: penal prove The fact that sanctions will ineffective to deter equally the suicide not itself does mean that the law criminal powerless to influence behavior of who would those aid or Moreover, principle induce another his to take own life. it sanctity would seem that interests in of life that are represented by the criminal are homicide laws threatened taking expresses willingness participate one who of consent, hand, a the life another, though accomplished may be, even the act with the request, or at the of the suicide victim. On the other Roberts, yielded cases such as where husband urging incurably provide of his sick wife to her with the self-destruction, sorely resiliency princi- means of ple mitigation test completely fails to take account of the claim for presents. [ALI, that such circumstance Model Code, 210.5, Penal comment § 100.] at Mich Cavanagh, C.J., JJ. abetting aiding should tory suicide offense accepted appellate given, court been have The the events. version of detailed defendant’s suffering aids and from in Cleaves was decedent strangling in assistance the defendant’s wanted himself. With trussed face down the decedent strangulation, help, the decedent the defendant’s position, body his with arched his in an pillow. role, when The defendant’s on a "pulled to effect the truss down” on put the dece- hand on to his

was point, steady the At when him. one to dent’s back slipped neck, defen- the decedent’s from the sash dant request rewrapped the decedent’s it at straightening By hands. the decedent’s it to retied out his body in feet, was sole his the decedent with tight his neck. was around the sash of how control In instruct the properly holding judge to refused trial that the statute, jury the assisted suicide the under appeals said: court "Every person who delib- provides: [The statute] aids, advises, encourages to another or or erately commit suicide, explained guilty felony.” of a As Court, distinguishing "key the to Supreme

by our assisting of murder and of the crimes between the defen- passive or role of is the active suicide dant nishes if he suicide merely fur- If the defendant in the suicide. suicide; means, aiding guilty of the he is the in the death of actively participates victim, of murder.” re guilty he is [In 163; G, 436; Rptr 3d 194 Cal Joseph Cal 1176; (1983).] statute 40 ALR4th 690 667 P2d " not than murder 'does providing for a crime less participation by one in the contemplate active contemplates It directly' causing death. overt act leading up the events participation the some act, overt such as furnish- of the final commission death, gun, the bringing about ing the means for water, knife, poison, providing the for the or the act person who himself commits the the use of the of self-murder. person actually per- But where a v Kevorkian Cavanagh, C.J., JJ. forms, actively performing, or assists in the overt death, shooting act resulting stabbing such as or victim, administering poison, holding, place one under ing, until water death takes drown- murder, his act and it is wholly constitutes pursu- immaterial whether this act is committed agreement ant to an with the victim [Peo- Matlock, ple 505; 51 Cal 2d P2d (1959).] App ALR2d 605 3d Cal [229 375.] viewing favorably Cleaves, most the evidence defense, court for said there were no facts support requested aiding instruction on abetting Although an assisted suicide. the defen- applied pressure ligature dant not have holding itself, he admitted that his act falling keep decedent to him from off the bed was designed completing assist decedent an strangulation. of "This act factual scenario indis- putably shows active the of assistance in overt act strangulation,” the court at 376. said. Id. Similarly, Sexson, in 117 NM State (NM 1994), App, P2d den 117 NM 215 cert (1994), charged first-degree the was with defendant shooting murder in connection with fatal the second-degree his wife. He was convicted of mur- following argued appeal trial, der a bench on prosecuted that he should have been state’s assisted suicide statute. under the dispute only The in in fact Sexson was whether actually it was the defendant or the who decedent pulled trigger the of the rifle that killed her. It disputed agree- not that was there was suicide pact two, ment between the and that was genuine. simply The defendant claimed to have position pulled held the rifle while the decedent trigger, the himself and that he had failed to then kill he when

because "freaked out” the dece- being breathe dent continued to after shot. Mich C.J., Cavanagh, J.L ar- defendant’s rejected court

The appellate under prosecuted not be he could gument spe- because murder statute general more the court doing, In so suicide statute. assisted cific differ- proscribed statutes the two emphasized conduct: ent liability for triggering criminal wrongful act "aiding another” assisting is suicide

the offense of It is well life. his or her own taking of in the of determin- in the context "aiding,” accepted that their liable criminally is ing involvement one whether for. another, is intended in the suicide suicide, to commit providing the means mean results performing the act which actively not death. . . . the crimi- views about are three different There who, pursuant whether liability of one nal suicide talk) (as not, (by or aids pact or solicits self-destruction) another providing the means soliciting aiding Occasionally held to be no crime commit suicide. suicide at all on has been view is That is not criminal.

ground that suicide many juris- At one time certainly unsound. most dictions states now suicide murder, great many but a held it to be aiding causing or with specifically deal statute, as a form of treating it either separate crime. Such stat- manslaughter or as participa- contemplate active do "not typically utes tion death,” murder conviction causing directly overt act by one to a is not barrier thus their existence in such circumstances. contrast, wrongful triggering criminal act "kill[ing]” or degree murder liability for second the context of of another. In "caus[ing] the death” case, degree murder statute the second the instant actively from preventing an individual at is aimed causing cide, contemplating sui- of someone the death is aimed assisting suicide statute the whereas providing some- an individual from preventing at one mit suicide. the means to com- suicide with contemplating Thus, condemn statutes do not the two People 493 v Kevorkian Cavanagh, C.J., JJ. —; [117 the Citations . . . NM P2d 304. same offense. omitted.] Turning presented Sexson, to the evidence in the accepted court the distinction in reiterated jurisdictions aiding other between murder "generally hinges upon suicide the whether defen- participates actively directly in dant causing act overt merely provides death, or he whether committing means of 869 P2d suicide.” 304-305. applies This distinction has even where the decedent given requested or consent that actual assis- provided. Sexson,. tance be In the defendant admit- holding position ted rifle in a calculated to assure the decedent’s The court death. concluded: merely providing "That action transcends Victim a participa- means to kill herself and becomes active in tion the death of 305. another.” P2d years 1920, In the since when Roberts was de- interpretation cided, causation criminal cases Michigan require has evolved a closer nexus required between an act and a than death was e.g., People supra; See, Flenon, Roberts. v v (1971). App Scott, 549, 558; Mich NW2d Supreme The United States Court also has ad- importance relating culpability dressed the liability. Arizona, criminal See Tison v US (1987); 137; 1676; 107 S Ct 95 L Ed 2d 127 Mulla- ney Wilbur, 421 697-698; US S 95 Ct (1975). L 44 Ed 2d participation suicide, the context in a recognized Joseph supra G, distinction in In re at constitutes most with view consistent overwhelming authority. There, trend of modern Supreme explained the California Court that a proper if conviction of murder participates a defendant in the overt final act causes firing gun plunger pushing death, such as 436 Mich 494 by Opinion Cavanagh, C.J., JJ. and However, a defen- hypodermic where needle. aon up leading merely "in the events is involved dant act, as such the final overt of the commission to furnishing as- .,” . . a conviction means proper. Id. suicide is sisted the common modified noted, has this Court As culpability perceives to tailor a need it law when precisely than is achieved the crime more to fit existing interpretations through application supra; e.g., Stevenson, See, law. the common perceive given, supra. we Aaron, For the reasons Accordingly, we would overrule a need here. such sup- it read to that can be to the extent Roberts port definition that the common-law the view pro- intentionally encompasses act of murder viding commits means which probable Only cause to there is where suicide.69 natural direct and death was the believe be can the defendant act result of properly defendant’s charge of murder.70 over on a bound plea, guilty not well the facts were involved a Because Roberts prepare only developed. poison act was to If in the defendant’s fact drink, knowingly did so and she and leave it for his wife participation voluntarily, find that sufficient we would not enough setting, it is not In the suicide constitute murder. defendant murder, directly merely provided to be convicted of the means of death leading up to the act that participated the events participate in the act did not death if the defendant caused directly death. that did cause recklessly However, where one who there be circumstances negligently provides another commits suicide the means which or could slaughter. person agitated offense, involuntary guilty man of a lesser such as be found gun providing a to a of cases in which There are a number despondent or intoxicated and to the defendant to be known support such a sufficient recklessness has constituted 611, 613; People Duffy, example, NY2d For conviction. NE2d despondent urged (1992), gun provided and and to the intoxicated the defendant himself, decedent, wanted to kill who had said he proceeded to shoot his head off.” The decedent him to "blow manslaughter Duffy in the for two counts of was indicted himself. second caused intentionally alleged degree. that he had The first count (NY Law, committing suicide Penal the deceased in or aided recklessly alleged 125.15[3]), caused the that he had and the second § death trial, (NY Law, jury 125.15[1]). the defendant After a Penal § v Kevorkian Beickley Cavanagh, C.J., Geiffin, JJ. merely Where a defendant is involved in the leading up providing death, events such as proper charge assisting means, in a suicide. specifically

However, even absent a statute that proscribes prosecution punish- suicide, assisted assisting pre- ment for in a suicide would not be may prosecuted Rather, cluded. such conduct be as separate saving common-law offense under the 750.505; clause of MCL MSA 28.773:71 Any person any who shall commit indictable law, at punishment offense the common for the of provision which no is expressly by any made stat state, ute of this shall guilty felony, punish be of a imprisonment by prison able in the state not more years by than 5 a fine of not more than $10,000.00, court.[72] or both in the discretion of the acquitted count, was of the first but convicted of the second. The New Appeals York Court of concluded: charged clearly conduct with which defendant was [T]he fell 125.15(l)’s scope proscription against within the of section recklessly causing person. People the death of another As the observe, who, aptly person knowing that another is contem- suicide, plating forward certainly deliberately prods person go immediate bringing and furnishes the means of about death "consciously disregarded] be said to have a substan- unjustifiable tial and risk” that his actions would result in the death of that .... NY2d [79 614.] Bier, 27; (1979); See also Persampi- State v 181 Mont 591 P2d 1115 Commonwealth, 19; (1961); eri v 343 Mass NE2d State v 1980). Marti, (Iowa, 290 NW2d 570 is, definition, by killing analysis Suicide of oneself. Our recognizes killing being a distinction between oneself and killed longer another. Because suicide is not murder and is no viewed' as criminal, 477, p assisting species see above at suicide is its own crime. opinion aiding abetting Our would leave undisturbed the law of aiding abetting necessarily requires because commission an principal. Kelly, offense 365 See 423 Mich 378 NW2d (1985). (1903) Carney, 478, 480; (concluding See State v 69 NJL 55 A 44 attempt Jersey that a failed at suicide was criminal under the New Mich Opinion by Cavanagh, C.J., and JJ. reinterpretation does of the common law Our liability enlarge scope for criminal not assisted a defendant ing up liability suicide, where but rather reduces merely is involved in the events lead- providing suicide, the means. such as prohibition Therefore, there is no violation of the post Const, I, §9; facto US art Const on ex laws. supra Stevenson, § art 10. at 399-400. See

D examining regarding an decision whether binding magistrate erred in a defendant over for trial is one that should be made in the first in- case, trial the lower stance courts did not have the benefit of court. this analysis set opinion evaluating degree in this forth for participation by defendant Kevorkian in the leading events to the deaths of Ms. Wantz and Ms. Accordingly, Miller.73 the circuit court for reconsideration of the defen- dant’s motion to discussed we remand this matter

quash light principles in opinion.74. this VII given, For the reasons we would reverse clause, saving which made all "offenses of an nature at indictable law,” for, misdemeanors); provided common not otherwise State v (1961) Willis, 473; (finding attempt NC SE2d an commit suicide to be an indictable misdemeanor under North Caroli- clause). saving na’s ruling quash involving A lower court’s on a motion to factual discretion, appellate matters is reviewed and an court for an abuse of rulings regarding issues of law are if reversed erroneous. (1991). Thomas, 448, 452; v 438 Mich 475 NW2d 288 74 Remanding to the circuit court for reconsideration of the motion quash usurp fact-finding will not function the ultimate trier by magistrates, of fact. Bindover decisions and the review of those courts, necessarily preliminary decisions determinations, trial involve factual although employed the standard to be is one of probable 6.110(E). guilt beyond cause rather than a reasonable doubt. MCR People v Kevorkian Boyle, J. judgment Appeals of the Court of in Docket Nos. 99759, and and remand the cases to the respective proceedings. circuit courts for further In 99758, Docket Nos. 99752 and we would reverse judgment Appeals regard of the Court of with 1963, 4, 24, to the claimed § violation of Const art respects. Finally, and affirm in all other in Docket judgment No. we would vacate the Appeals, Court of and remand the case to the proceedings circuit court for further in accordance opinion. with this

Cavanagh, C.J., JJ., concurred. (concurring part dissenting

Boyle, J. part). agree opinion I with the §7 lead Title-Object 1993 PA 3 does not violate the Clause Michigan entirety. of the agree Constitution1 in its I also opinion’s

with the lead result and rationale finding that the act is not violative of a fundamen- right protected by tal the Due Process Clause of the state addition, or federal constitution. as stated in the observations of Justice Harlan2 quoted approvingly in Planned Parenthood Pennsylvania Casey, Southeastern 833; 505 US (1992), 112 S Ct L Ed 2d 697-698 expansion principles and the follow, on those judiciary the task of the is to strike a balance respect liberty between the for the of the individ- organized society. ual and the demands of Such respect balance should be struck with due to his- tory rationally evolving Thus, tradition.

present process context, the of rational evolution (Harlan, J., dissenting Poe Const Ullman, art 367 US 24.§ from dismissal on 497, 542; 81 S Ct jurisdictional grounds). 6 L Ed 2d 989 (1961) 447 Mich 436 Boyle, J. ques-

must focus on a determination whether political left to the tion of assisted suicide can be process protected liberty without intrusion on a departure eschewing interest, from either a radical judges. I tradition or the moral code of individual agree it that can. agree opinion’s

I redefini- do not with lead statutory tion of the participation offense of murder to exclude leading up death,

in the events including, providing limitation, without the means precipi- and all other that of the final act acts save tating participates death. A who charged may murder, death of another be with irrespective of the consent of the do deceased. Nor agree opinion’s I with the lead conclusion or justifying charge of rationale assisted suicide saving saving recog- under the clause.3 The clause unprovided-for only crimes; nizes common-law it does not authorize this Court to create new crimes. assisting If a suicide is a common-law crime and not murder under the common-law definition in- corporated may pe- statutes, it our murder be saving nalized as another crime under the The clause. simply Court, however, cannot exclude from the common-law definition of murder that which is murder under our statutes and then hold that the Legislature saving intended in the clause to say authorize Court to that which was murder at the common law is now a new crime. disagree

Finally, I with the conclusion that one provides partici- who for means suicides and pates leading up in the acts to death not be charged long with murder as as the final act is stating conclusion, that of the decedent. this opinion parsed participa- lead has the definition of permit dangerously tion to involvement 750.505; MCL MSA 28.773. People v Kevorkian by Opinion Boyle, J. overinclusive. Absent standards established to dis- tinguish terminally between those who are in fact suffering agony rationally ill or in wish to die principled not, and those who are is there no judicial protect against vehicle in the arsenal jury’s given abuse, save the evaluation of a defen- dant’s conduct. The acts in shown the Oakland County case establish causation as a matter of law purposes Thus, for of bindover. the trial court quashing information, in erred and the deci- Appeals sion of the Court of affirmed. should be

i statutory Criminal homicide has been a offense Michigan since 1846. The crime is not defined by reference to its elements but reference to Schmitt, the common law. 275 Mich (1936). dispute 577; 267 NW There is no that committed, at the time these offenses were Legislature disposition depart had shown no from the common-law definition of cluding in- murder as opinion today

assisted suicide. The lead changing would alter the definition of murder requirement the causation in the context of suicide liability to exclude from those who for criminal homicide intentionally participate in the events directly cause death with the intention that death occur. plaintiff’s

However, the intended results of the actually obtained, acts were the results and the proximate were acts both the cause in fact and the or foreseeable cause of the decedents’ deaths. The opinion lead would thus it redefine murder as special defined our statutes and has created a jurisdic- any standard, causation unknown other tion. preliminary

The detailed account of the exami- Mich Boyle, J. describing testimony the assisted suicides nation Ms. Miller and Ms. the notion defendant mit a

Wantz, 482-484, ante at belies degree participation by the per- insufficient to in these events was charge even in those states that of murder penalties soliciting adopted separate for have assisting Testimony preliminary suicide. at presented that the defen- examination evidence dant, alia, into Ms. inter inserted iv needles fingers strings arm, tied to her so she could Wantz’ release chemicals into her placed bloodstream, over Ms. Miller’s face so that she could a mask gas. Id. at 483-484. The breathe carbon monoxide tightly mask was secured so that without interven- that death. It tion fact alone would have caused said, law, cannot be actions as a matter of that these probable did not establish cause believe that the defendant murder. committed alleged present

The decedents’ desire in the case they that not die with the defendant’s assistance does liability. absolve defendant criminal (1858). People request by Potter, v 5 5 Mich provide justification does decedents not E.g., Cobb, 522; excuse. v 625 State Kan P2d (1981); Fuller, State Neb (1979); liability NW2d 756 anno: Criminal for attempt of another death as result accused’s suicide, kill self or assist another’s ALR4th pp magistrate’s § 5, 709-710. The decision to bind upheld. over the defendant for trial should be ii opinion The lead invites the circuit court on remand to draw a distinction between acts of participation merely leading are that "the events up to” the deaths of the decedents and "the final that, overt act that causes death” as a matter of probable charge law, will constitute cause for the v Kevorkian Boyle, J. responsibil- of murder. Such "test” transfers the ity for the outcome from the shoulders of this effectively Court every to the trial court and converts accomplished by partici- criminal homicide pation assisting into suicide. argued

It could be this solution does no than more what the assisted suicide law does. But only temporary the assisted suicide law is still Legislature measure, and the has never indicated it would not follow the model of other states apply and continue to the law of criminal homi- despite specifically cide the existence of statutes directed to suicide. opinion’s

The lead "solution” is in fact an invita- participation tion to continue until the level of participation proof assumes a level of for bindover suggesting that the defendant kill intended to impure pragmatic decedent for terms, reasons. In discourage the margins. force the law is to conduct on the opinion What the lead would indo set- ting margins permit range activity new a new potential and thus increase the for abuse of the by participant. vulnerable the active Supreme recently As the Canadian Court and aptly upholding prohibition observed in a blanket against assisted suicide: for basis this refusal is it twofold seems—

first, participation by the active one individual the death of legally intrinsically morally another wrong, secondly, certainty there is no prevented that abuses can be by anything less complete prohibition. than a [Rodriguez v British Columbia, 107 DLR4th (1993).] 401

A People Roberts, 187; v 211 Mich NW Mich by Boyle, J.

(1920), correctly statute held that the homicide incorporated the common-law definition of had question presented as murder. The assisted suicide authority modify to is whether we have power granting and, that we have the to definition do so, Couch, 436 we should. whether (1990). ques- 414; Mich 461 NW2d 683 The latter judiciary tion involves the issue whether the can advancing acceptable an the auton- devise omy formula worthy not to of those who deem their lives jeopardizing lived, be without lives of those might society whose further existence worthy deem not protection. That the Court is to unable by today’s do so is illustrated decision that alters settings, just the law of causation in all suicide those of not terminally acutely suffering. ill or dissent, As Justice Jackson observed a famous judicial a principle decision a force all its own. has "The weapon

then lies about like a loaded Every repetition principle .... imbeds that more deeply thinking expands in our law and it purposes.” States, new Korematsu v United (1944). 214, 246; 89 L US S Ct Ed 194 participant The fact that an active in the death jury of another cumstances are not so risks determination that the cir-

compelling as benefit mercy-dispensing power from their tests the situa- only repository tion and the actions authority judicial within the reach. Whether death good, bad, reasons, has been caused for whether the or mixed or presently inis fact incurable suffering unmanageable pain, intolerable die, and has a fixed and rational desire to are jury issues Legislature, should be addressed or the not this Court as a matter of law. Today purports approve only the Court a mild moving deviation from the common law line of protection the murder statute affords from v Kevorkian Boyle, J. participation pulling trigger. But the law killings that condemns such as murder has a greater substantially imposing effect, deterrent substantially greater responsibility on those who penalty it would violate than the for assisted suicide.

While the Court’s redefinition causation is presumably opinion correctable, the lead would potential any reduce deterrent without assur- marginally ance that it line draws will not increase the risk of death for those who would society partici- have reason to live had and the pant in their demise valued their continued exis- tence. opinion recognizes

The lead that the state’s guarding against potential interest abuses does require not it to stand neutral. The state’s interest protecting the lives of those who wish to live any justifies under circumstances also the most severe sanction for those who would cause such deaths. The lead

opinion nonetheless sends the message quality particular it assesses the judges human life as a matter of that it law culpable destroy less some than lives others.4 society that draws a line that dictates that it is go many better that free than one innocent something approach- convicted, should be ing principles protecting against error that are criminally extended to the tended to the participate accused should be ex- willing of those victims who are long death, in suicide and to cause as pull they trigger. Kamisar, as do not the final non-religious against proposed "mercy- Some views (1958). killing” legislation, R Minn L today recognizing The line drawn is a far less merciful one than that there is much that could and should be for those are done who who, variety reasons, truly suffering, themselves as irrelevant for a have come to see this brave new world. Mich Boyle, J. opinion’s jury

The lead distrust of the and its severity punishment imposed dislike for the by the of criminal homicide has caused it to law dangerous draw a line that crosses a threshold. mistake, The risk irreversible however "mini- longer mal,” should not be borne those no able protest—it should rest on those who assume the authority extinguish and wisdom to life. human

B culpability To the extent that this Court reduces actively participate for those who in acts that produce death, we do so at the risk of the most society—the elderly, vulnerable of our members depressed, chronically suffering ill, the from a those panoply adolescence, of stressful situations: employment, spouse, loss of the death of a child or divorce, alcoholism, the abuse of other mind-alter- ing stigmati- substances, and the burden of social zation. opinion’s

The lead solution assumes the actor is patient a sufficient buffer between the and the family, enough that the actor knows about enough disease to assure its terminal course and sanity about the rationality of the deceased to evaluate the opinion ig-

of suicide. The lead thus voluntary nores the distinction between a act car- inquiry sane, if ried out the victim is and the into compromised whether the victim’s mental state is by depression, disease, or medication.

c recognizes The Model Penal Code the inherent objective management difficulty of of an assisted separate proper improper suicide law from moti- participant. pur- vations of a The code classifies People v Kevorkian Opinion by Boyle, J. posely causing, engaging is, in conduct "but question for which the result would not have occurred,” p Code, 210.5, Model Penal § 4, comment deception force, duress, suicide or as Aiding assisting criminal homicide. another to felony commit suicide is a at the level of man- slaughter if the causes, defendant’s conduct "significantly contributing is, was a factor” ato attempted p Id., suicide or suicide. comment 103. statutory The same distinctions are in drawn schemes. States that have enacted assisted suicide permit prosecutions statutes continue to for crimi- recognition nal homicides out of that underinclu- drawing by judiciary may, sive line here, as permit dangerously activity. overinclusive excerpts fact,

In as the from the cases cited opinion aligned indicate, the lead it has not itself Thus, with other in Cleaves, states. App Rptr (1991), 367, 375; Cal 3d 280 Cal court found that a defendant who held the dece strangle dent’s back so the decedent could himself suicide, passive merely participant was not in a stating applies the murder statute "where a person actively performing in assists the Overt act resulting in . Likewise, death . . .” State v Sex (NM 1994), App, son, 113; 117 NM 869 P2d 301 support opinion’s does not the lead revisionist view Sexson, of causation. In the court found that de charged fendant could be that he with murder on evidence merely gun place held a "[t]hat because merely providing action transcends the Victim a participa kill means to herself and becomes active Id., tion in the death of another.” 869 P2d 305. setting The factual issue decided In re Joseph Rptr G, 429; 163; 34 Cal 3d 194 Cal (1983), markedly P2d 40 ALR4th 690 are present dissimilar from those defendant case. Unlike party any Kevorkian, who not was Mich Opinion by Boyle, J. agreement, similar but rather an in accom- aider plishing persons, the deaths of two other the de- Joseph participant fendant in G was a in a mutual pact, intending at suicide the time of his actions to partner.5 kill both himself his finding simultaneously that a defendant who completion agreed undertook to suicides partner single with his deceased tality instrumen- only guilty assisting could be found sui- cide, murder, and not the California court "de- ritualistically apply active/passive cline[d] to distinction” between murder and suicide assis- employed by precedent unique tance earlier it. facts before Id. at 440. Joseph analyze precedent G court did re-

garding the distinction between murder and the statutory assisting suicide, crime of but did not opinion suggests, charge hold, as the lead that a against murder a suicide assistor unavailable participated unless the assistor in the final overt key Instead, act. distinguishing the court concluded that "the the crimes of murder and between assisting passive suicide is the active or role of in the defendant the suicide. If the defendant merely guilty aiding means, furnishes the he is actively participates suicide; if he in the death of guilty victim,, the suicide he is Id. murder.” at 436. The court made no clear distinction between passive where such assistance ends and active participation begins.6_ addition, Joseph the court in G was concerned with the inter pretation statutory proscription suicide, against assisting of a rather propriety charging present than the common-law murder as is in the instant case. Roberts, question People supra, We do not reach the whether v might apply

should be it reconsidered insofar as to one who is absent by when the means furnished is consumed factually the deceased. Roberts is question dissimilar from the instant cases. The whether the incorporated by acts in this case constituted a common-law crime not v Kevorkian by Boyle, J. Although in irrelevant distinctions are these have an assisted we did not context because this of Ms. of the deaths at the time statute suicide Miller, discussion the referenced Ms. Wantz and participation in states, that, in these establishes chargeable causing as mur- death is acts the overt support the lead Thus, cited do not the cases der. opinion’s did not that if the defendant conclusion directly participate cause[s] . . . "in the act that added), (emphasis 494, n he death,” ante at charge of murder.7 over on a be bound cannot up trigger, pull he held did not Sexson strangle gun, decedent, not he Cleaves did completing the act. Like- the decedent assisted pull trigger not wise, Kevorkian did defendant in com- Miller, he Ms. Miller Ms. but assisted for pleting case, his involve- act. In Ms. Wantz’ inserted more direct. Defendant ment was even herself. When and Ms. Wantz sedated the needle trigger dropped involuntarily, was her hand pulled defendant was the needle inserted potassium carrying chloride sufficient .activated quantities to cause death._ note, however, us. is likewise not before We our criminal statutes the Court necessary if suicide not find it to determine in Roberts did Michigan. (although unpunishable) exclu- The Court’s

was a crime (1872), State, may St 146 have v 23 Ohio sive reliance on Blackburn obscured Ohio statutes NJL scheme, that, Michigan statutory unlike the the fact Carney, saving clause. See State did not contain a (1903). 478, 480; definition of murder 55 A 44 The Roberts correctly in our homicide statutes. the common law embodied states recognize willing, one opinion at n is ante The lead commits negligently the means which another furnishes who Thus, manslaughter. only guilty is one who could be found suicide may participate criminally be found not at all careless and does partici present fifteen-year felony, guilty is while one who of a directly leading up caused death pates to the act that in the events charged only with assisted death can be the intent to cause with Moreover, penalty years. suicide, punishable of five a maximum innocent, follow that one who it would act of suicide since an attempts charged process not be in the kills others and fails but any offense. with Mich Boyle, J. Ill opinion Finally, the lead finds that has one who participated only in a but suicide has not done the causing prosecuted final act death be under saving 750.505; the statute is clause. MCL MSA 28.773. The

applicable only when two conditions punishable by obtain: the conduct is not otherwise statute law. conduct was indictable at common

However, law, at common one who does the through agent, princi- deed, even an innocent is a ple degree. Boyce, in the first Perkins & Criminal (3d ed), p criminal,8 Law 737. If suicide is not opinion attempted by judicial lead has fiat assisting Culpability create a new crime of suicide. persons assisting for in suicide at common law was participation parties based on as to the crime of saving suicide.9 The clause furnishes no basis for usurpa- the Court’s creation of a new crime. The legislative authority opinion’s tion of in the lead approach is if evident one considers the reach of opinion suggests ability its rationale. The lead an settings to exclude certain factual from the reach.# then, were, of the homicide statutes and it as find legislative free-standing authorization of a author- ity recognize newly evolving punishable crimes saving under permissible, punishment clause. If such conduct were simply

the Court could reorder any felony by concluding for given conduct falls outside a statute but within the saving Contrary opinion’s clause. to the lead con- saving delegation clusion, the clause is not a legislative authority to this Court to create new Legislature only crimes. The intended to save what had not otherwise been covered in 1846. Ante at n 71. 9See, generally, (describing id. at 735-751 the common-law distinc accessories), principals pp (applying tions between distinctions in suicide 756-757 cases). v Kevorkian Opinion by Boyle, J.

CONCLUSION opinion hold that where one The lead would plans participates "only” in a death the actor charged "suicide,” as he not be can claim was juris- homicide. No a matter of law with criminal history country has so held in the of this diction way no of assur- reasons. We have and for obvious ing redefining the line that constitutes causa- that distinguish terminally ill or between tion will suffering people desperately and those who think deciding they way are, in advance that no of a rational who of suicide is that act severely dignity or that of a with chose death depressed person not have chosen who- would significantly, help available. Most death had been unwillingness jury opinion’s a to allow the lead degree determining dispense mercy of cul- clearly pability and caused intended for a result change in the funda- a sea a defendant fact preservation assigned to the we have mental value great that of the last faiths human life as one unites us. question of murder the definition whether partic- changed one so as to exclude who be

should leading up ipates death, save in all events compelling public act, is a matter of for the final interest, demanding balancing legitimate in- a institutionally unsuited Court is this terests Although Legislature passed perform. par- temporary ticipation, law that included assisted suicide it intends to indicated that it has not every jurisdiction murder, that has redefine adopted covering specific suicide has law assisted par- prosecution permitted for murder where goes ticipation far.” No issue is more deserv- "too public legislative ing study regarding debate continued persons when, whether, and how Mich Opinion by Boyle, J. personal autonomy running can maximize without creating quicksand the risk of a societal for irre- versible error. stay

The decision to our hand in this matter is simply adhering not a matter of to the rule of recognizing It law.10 reflects the wisdom in if pres- intervene, we choose not to we have left the change rapidly developing sure for in this exceedingly complex field in the forum where it is best addressed. To choose to intervene is to remove pressure assisting the found to decide that suicide can be jury murder, to be and to add the imprimatur Court’s to the voices of those who argue expansive right for an to self-determination that would decriminalize assisted suicide.

As Professor Tribe observed in the context of principles regarding constitutional these issues: judiciary’s regarding silence such constitu- [T]he principles tional probably that, reflects a concern recognized, rights might once to die be uncontaina- might prove ble and susceptible grave abuse, to suggests more than it suaded that per- that courts cannot be personhood self-determination include a to dictate the circumstances event, under which life is to be ended. In any whatever of resulting in reason for the absence in the courts expansive self-determination, notions about legislatures deference to may prove wise light complex rights character of the at significant that, potential stake and the without guidelines careful statutory and gradually evolved controls, procedural euthanasia, legalizing rather respecting people, than may endanger personhood. (2d ed), [Tribe, pp Constitutional Law 1370-1371.] profound questions that must be debated 1963, 3, Const art 7. "The common law and § the statute law now force, repugnant constitution, in until or not to this shall remain in force limitations, they expire by changed, their own or are amended repealed.” People v Kevorkian Opinion by Levin, J. regulatory decisions that must be made legislative uniquely resolution. suited for are principled the Court no method which There is murder, definition can amend common-law of this state. v in the statutes included (1921). 74, Utter, 86; 185 NW 830 217 Mich requires the oath we took proper, is in fact [I]t devise, less, nothing Legislature rely on so, it choose to do a means avoid should assisting imposed penalty that when harsh pursuant to a literal is treated as murder suicide [People 750.316; MSA 28.548. application of MCL 191; 517 Kevorkian No App 205 Mich (1994).] NW2d

Riley, J., J. Boyle, concurred with dissenting (concurring part J. Levin, agree opinion part). § 7 of I with the lead enacting person, provides 3,1 1993 PA that a who "participates physical "physical in a means” or attempts person or commits act” which another guilty suicide,2 suicide, is of criminal assistance to 28.547(121) seq. seq.; et MCL 752.1021 et MSA 2 (1) person knowledge intends A who has that another intentionally attempt to commit suicide and who to commit or following guilty is of criminal assistance to does either suicide, imprisonment felony punishable by than for not more $2,000.00, years by or both: or a fine of not more than (a) by person physical which the other Provides the means attempts commits suicide. or (b) Participates physical by the other in a act which attempts or commits suicide. (2) (1) withholding apply to or withdraw- Subsection shall not ing medical treatment. (1) (3) prescribing, dispensing, apply or not to Subsection does procedures administering if the intent is to or medications death, pain even if the and not to cause or discomfort relieve medication or death. procedure the risk of hasten or increase 25,

(4) February 1993. shall take effect This section Mich by Levin, J. Title-Object does not violate the Clause of the Michigan Constitution. agree opinion I further with the lead that common-law offense of murder should be redefined preclude conviction for murder on evidence that merely the accused was involved in the events leading up providing death, such as proper charge means, and that in such a case the saving is assisted suicide under the Penal Code clause of the providing five-year felony it is provi- commit a common-law offense for which no by sion is made statute.4 agree

I § also 7 of act 3 does not violate the Due Process Clause of the Fourteenth Amendment of the United States Constitution5 insofar as it assisting by physically healthy bars suicide but mentally incompetent person.6 disturbed or (5) repealed This section is effective 6 months after the date legislature

the commission makes its recommendations to the pursuant 752.1027; 28.547(127).] section 4. MSA [MCL 3 Michigan provides: Constitution object, No law shall embrace more than one which shall be expressed in its title. No bill shall be altered or amended on its passage through purpose title. change either original house so as to its as determined total its content and not alone its art [Const § 24.] 4 Any person any who shall commit indictable offense at the law, punishment common expressly provision for the of which no by any state, guilty made statute of this shall be of a felony, punishable by imprisonment prison in the state not years $10,000.00, more than 5 or a fine of not more than or 750.505; both in the discretion of the court. MSA [MCL 28.773.] provides part: The Fourteenth Amendment any deprive life, any person shall liberty, State [N]or property, process without due of law .... opinion The memorandum states: v Kevorkian Levin, J. however, hold, § I 7 of act 3 would that violates compe- it the Due Process Clause insofar as tent, bars a person facing ago- terminally imminent, ill nizing obtaining death from medical assistance to suicide. commit accordingly direct,

I in the three criminal would (numbers 99759), if cases the circuit court determines on remand that produced preliminary evidence at examina- persons who committed sui- tions shows competent, facing terminally ill, im- cide were an quash agonizing minent, death, the motion to granted regard should be with to assisted suicide preliminary murder, and, if as well as exami- inadequate purpose, nation records are for that by the circuit the matters should be remanded preliminary examination to court for a further persons committed determine whether who facing competent, terminally ill, and suicide were agonizing imminent, an death.

i Title-Object 1993 PA 3 does not violate the Michigan because Clause of the Constitution object, namely, (cid:127) Act 3 embraces but one dying, including issues related to death and suicide, assistance of and_ 2) prohibit not The United States Constitution does a state imposing penalties on one who assists another in from criminal C.J., Boyle, (Cavanagh, Brickley, committing suicide. JJ.) [Ante, p Riley, 445.] imposed penalties join on I in that statement insofar as such are physically healthy mentally but disturbed one who assists incompetent penalties suicide, person join such to commit but do not insofar as providing imposed commit for medical assistance to are facing competent, terminally ill an imminent to a suicide agonizing death. Mich Opinion by Levin, J. (cid:127) 3,Act in contrast with 1992 PA was passage

not altered or amended on its through either house.

ii Dr. Kevorkian not a murderer. The evidence People in the cases, instant v Kevorkian in con- People trast with the record in Roberts, v (1920), depended Mich 178 NW 690 which substantially self-serving possibly testimony on the pleaded guilty, defendant, who had estab- pro- lishes that Dr. Kevorkian did no more than physical by vide the means which the decedents took their own lives. That evidence establishes no more than criminal assistance of suicide or a common-law assisted suicide oifense for which no provision by is made statute.7 agree opinion

I with the lead that Roberts should be overruled it insofar as can be read as holding person that a who does no more than committing assist another in suicide has acted requisite with the malice to establish element of the crime of murder.8

Because evidence adduced in the murder prosecutions showed no more than criminal assis- tance to suicide or such a common-law assisted oifense, suicide I see no need for a remand to determine whether Dr. Kevorkian should be bound charge join part over on a I murder. in vi of opinion join overruling lead in Roberts support extent that it can be read to the view that encompasses the common-law definition of murder opinion, ante, accompanying text, See n 4 pp and the lead 494-495. person purposely A who causes another to commit suicide force, deception may prosecuted ALI, duress or be for murder. See Code, 210.5(1), pp Model Penal § 91 if. Kevorkian Levin, J. intentionally providing the means which a person commits suicide.9 prosecutors Attorney General and the con- person

tend that in no circumstance does a have liberty interest under the Due Process Clause obtaining Dr. medical assistance to commit suicide. any terminally Kevorkian contends that ill liberty agree I has such interest. do not with positions. either of those absolute signed opinion colleague10 I have of a recognize would some circumstances to physician-assisted agree suicide because I with him person terminally may that a who is ill a have liberty obtaining physician’s in interest assis- may suicide, § tance to commit 7 that of act 3 applied be violative of the Due Process Clause as particular terminally person. to a ill legislation providing legis- means, Absent with prescribed latively safeguards, by which a termi- nally person may ill obtain such medical assis- person terminally tance, I would hold that a ill may apply to the circuit court for an order declar- ing assistance, entitlement to seek medical § that 7 of 3 act is violative of the Due Process applied person. Clause as to that 11 developing concerning withholding law judge of medical treatment12 would assist a circuit deciding appropriate in whether it is under all the 9Ante, p 494. 10 opinion (concurring part Mallett, dissenting See J. part). 11 Making Life-Sustaining Guidelines for State Court Decision ed) (1992). Treatment, (2d

Medical Center National for State Courts supra, provides 7 of n 2 See subsection act § which apply withholding 1 of 7 of act 3 not subsection "shall § withdrawing medical treatment.” Mich Levin, J. circumstances to conclude that is enti tled seek medical to commit suicide. assistance expedited, should, course, Such a case preliminary phases be litigation precede of such could terminally person actually the time ill when agonizing imminent, faces death. Attorney

The record Hobbins v General does persons alleging not establish terminal litigation in that illness threshold where it would be clude that have now reached the

appropriate to con- they are entitled to seek medical assis- they suicide, tance to commit nor do claim that they They an have immediate desire to do so. any should be allowed to commence an action at they time to establish record so that if and when approach appropriate the threshold where it is they conclude that tance to commit are entitled to medical assis- preliminary phases

suicide, litigation such will have been concluded and the proper showing, expedi- can, circuit court on a tiously they providing an enter order the relief that they they die, choose,

seek so that can if less convulsively, painfully, less and with as much dignity possible. as be

iv question, I turn § meritorious whether of act violates the Due Process Clause. opinion ques-

The lead states that "the threshold tion in this case is [Due whether Process encompasses right a fundamental to com- CJlause right and, so, mit suicide if whether it includes a to assistance.”13_

13Ante, p 464. opinion similarly The lead states: theories, course, liberty All the assume fundamental [Ante, p interest suicide itself. 468.] People v Kevorkian Opinion by Levin, J. By framing question manner, in this opinion lead foreordains the answer. long history prohibiting

There is a of laws sui- power, obliga- cide. The state has the indeed the protect prohibiting tion, to life. But laws suicide and assisted suicide evolved to address situations different from those here at issue. Those laws persons seeking assume that to terminate their emotionally mentally lives are disturbed or ill. majority This is so in the vast of cases.

The real issue is not whether the state can generally prohibit suicide. The real issue is may deny competent, whether the state termi- death, nally person, facing agonizing ill imminent, medical assistance to commit suicide. agree opinion

I with the lead that assisted sui distinguished pro cide can be from other conduct Clause, tected the Due Process such as abortion life-sustaining and the withdrawal medical controlling precedent treatment. The absence of precisely addressing not, however, issue does inquiry, opinion presupposes end the as the lead disagree states, it when "[w]e . . . that either Cru Dep’t [v Director, zan Health, Missouri 497 US (1990)] 261; 110 2841; S Ct 111 L Ed 2d 224 Pennsylva [Planned Parenthood of Southeastern Casey v] [, nia 2791; US 112 S Ct 120 L Ed (1992),]preordains Supreme 2d 674 that the Court persons, any including would find that the termi nally liberty ill, have a interest suicide that opinion accompanying

The lead reasons in an footnote: attempt liberty An to find a interest in assisted suicide independent liberty of a interest in suicide itself cannot suc- encompass ceed. If the Due Process Clause does not a funda- life, right encompass mental to end one’s it cannot [Ante, ending p assistance in one’s life. n 35.] paragraph p See also second of n 47 on 476. Mich Levin, J. (Em

protected by the Fourteenth Amendment.”14 added.) phasis preordained,

If the issue were these cases would troubling. facing the Court not be so is not whether suicide or The real issue

assisting can be suicide proscribed by law, Due but whether Process competent, depriving Clause bars terminally increasing state from person, facing death, ill imminent obtaining agony, from assis- medical suffering tance to avoid such a end of life. bitter opinion distinguishes length The lead at Casey, instant cases from Cruzan and and stresses long history is a the obvious: there laws outlaw- ing suicide. life-sustaining

Abortion and withdrawal of mea- sures are indeed different from assisted suicide. application princi- Nevertheless, a reasoned ples Casey persuades stated in and Cruzan me that person’s ability state law his Whether on a to end restrictions implicates personal liberty. life interest competent, terminally person ill has a right to medical assistance to commit suicide can- balancing not be decided without est the state’s inter- against person’s interest. I conclude that Supreme presently Court, the United States as composed, question, if constrained to decide the person’s outweighs hold that would interest competent, the state’s interest when the terminally facing agoniz- imminent ill and an ing death. any explicit conclude,

I not thus so from com- precedent, by applying approach mand of suggested by but Supreme

the United States Court in imperfect Casey, judgment”15 "reasoned analogies Casey and Cruzan.16_

14Ante, p 470. O’Connor, opinion Casey, supra, Kennedy, S Ct Souter. 16 Cruzan, the Court said: People v Kevorkian Opinion by Levin, J.

V The lead opinion dismisses Casey, arguing that it was decided on decisis, the basis of stare rather merits, than the and that generis. abortion is sui however, Casey, reaffirmed the doctrinal support for earlier rights abortion decisions of the United Court, States Supreme stating: reservations any may of us have in re- [T]he affirming US holding Wade, the central of Roe [v 113; 93 S Ct 35 L (1973)] Ed 2d 147 are outweighed by explication liberty individual given we have decisis.” with combined the force of stare [Id., Emphasis S Ct 2808. added.] The Casey plurality clarified the analytic method for deciding substantive process issues, due said: inescapable fact adjudication is that of sub- process

stantive due Court in may claims upon call interpreting the Constitution to exercise that same capacity which tradition courts al- ways have exercised: judgment. reasoned Its susceptible boundaries are not expression as a simple rule. That does not mean we are free to policy invalidate state agree; yet the duties of choices with which we dis- permit neither does it us to shrink from [Id., our office. S Ct 2806 (opinion general Petitioners insist holdings that under of our cases, the life-sustaining forced administration of medical treat- ment, artificially and even of delivered food and water essential life, implicate competent person’s to Although would liberty a interest. logic we think the of the cases discussed above would interest, liberty embrace consequences such a the dramatic involved in refusal inquiry of such treatment would inform the deprivation as to whether of that interest is constitution- ally permissible. case, purposes But for of this we assume that grant the United a competent States Constitution would constitutionally protected right lifesaving hydration to refuse and nutrition. US [497 279.] Mich Levin, J. JJ.). Emphasis Kennedy, Souter, O’Connor, added.] opinion Although in- limit the would the lead precedent, practices quiry solely Casey historical thoughtful, engage in more on us to calls approach.17 formulaic less

VI beginning cases, In re with line of Another (1976), and, more 10; 355 A2d 647 70 NJ Quinlan, recently question supra, Cruzan, addresses life-sustaining be treatment medical whether withdrawn person. incompetent Cruzan from an recognition life- ear- refuse said that implicit sustaining support in the Court’s was construing Due Process Clause. decisions lier The Court on that "the United

that assumed basis competent per- grant a would Constitution States protected right constitutionally to refuse a son lifesaving hydration at 279.18 nutrition.” Id. competing were interests said that The Court following Casey plurality view of the Due The reaffirmed Process Clause: built

best that can be by content cannot has struck society. traditions from which from which S Ct 2806 decisions it has missal on "Due this upon postulates 6 L country, having regard . . . The balance of which process jurisdictional Ed (quoting between that it broke. 2d 989 be determined said is that has not been reduced represented Poe That tradition is a ^[1961] grounds]).] it respect for the v liberty and the demands of developed Ullman, through [Harlan, the balance to what by I reference to speak 367 US as well liberty J., dissenting history living thing.” [Id., 112 course of this Court’s to is the balance struck which our any as the traditions of the teaches are any 542; formula; individual, code. organized from dis- 81 S Ct Nation, The its observes, Supreme opinion Court the United States lead As the Ante, p right right treatment. premised 465, to refuse medical this on corollary right to the common-law was derived as a n 29. This addition, Cruzan, supra 269-272.In this at notion of informed consent. Kevorkian Levin, J. especially involved, where, Cruzan,19 as in the life incompetent person of an was involved.20 The Court requiring ruled conclusion that a Missouri statute convincing there be clear and evi- incompetent person’s dence of the authorizing intent before life-sustaining the withdrawal of treat- constitutionally permissible ment struck a balance competing between the interests.21 opinion The lead contends that withdrawal of support distinguished life can be from assisted generally agree. suicide. I person allowing respirator

A rule a to have his steps disconnected, but to take no other life, condemns him to choke end his death on his own sputum. Similarly, person if the law bars who through only feeding can take nourishment tube taking steps ordering from in addition to the tube required life, removed to end his he is suffer dehydration. Barring death persons starvation and such taking steps

from other to end their lives would, think, I on constitute an undue burden recognized implicitly in Cruzan.22 Cruzan person limiting should not be read as to a half step suffering. greater when would result in legitimate involuntary concerns eu- about apply at thanasia with least as much force support withdrawal life where the incompetent, yet Supreme the United States Court permitting in Cruzan held that a state statute support proof incompe- of life on withdrawal tent’s wishes convincing clear and was evidence consistent with due process._ interest, right protected "liberty” was in of a framed terms rather privacy. 7. than under the Id. at n 19And in Quinlan. 20Id. at 280-281.

21Id. at 283. See part vii. Mich Levin, J.

VII Casey plurality the conflict be- resolved The of the fetus in the life interest the state’s tween integrity bodily and interest in woman’s and the drawing at fetal viabil- line self-determination ity.23 place viability, an not the state Before right to an abor- on the woman’s burden” "undue tion.24 between Cruzan, struck a balance

In the Court preventing euthana- in life and interest the state’s being person’s incompetent in sia, interest bodily The Court intrusions. of unwelcome free evidentiary convincing” that a "clear found permissible provided balance standard competing interests.25 legitimate context, state interests

In the suicide ending outweigh person’s generally in interest majority "irra- suicides are The vast his life. mentally depressed or dis- efforts tional” per- reasonably Society assume that a can turbed. percep- problems clouded his have son’s mental healthy person is de- an otherwise tion. Where personal liberty mentally pressed disturbed, the or strong weak, inter- and the state has a interest protecting person’s interests in life. est compe- contrast, involved is where the facing agoniz- terminally imminent, ill, tent, preserving ing death, the interest of state terminally weak, ill the interest of the life is person ending suffering is strong._ 23Id, 112 S 2817. Ct 24Id., 112 S Ct 2820. plurality finding undue burden is a stated that of an "[a] regulation purpose for the conclusion that a state has

shorthand placing path woman a substantial obstacle in the of a effect Id., seeking abortion a nonviable fetus.” 112 S Ct 2820. an 25Id. at 283. 523 v Kevorkian by Opinion Levin, J. First, The state two interests.26 the asserts general preserving In most state’s situations where a interest life.27

person might commit seek to person, handicapped suicide, the even if emo- remaining years tionally disturbed, life has for protect. possibility the state to That been has terminally person. largely ill foreclosed for The death, is choice that not between life and remains but death. over terms of against principal argument suicide assisted is the second interest asserted state: assur- ing persons that who desire to live are not coerced committing clearly into concern of suicide. this While is

great importance, adequate procedures developed can and have been that a assure terminally person’s ill to end is not choice life coerced.28

Restrictions on medical assistance to commit terminally suicide for the ill be should evaluated according to the undue burden standard enunci- Casey.29 per- ated in The undue burden standard regulate process medically mits the state to (a) person truly assisted suicide to assure that the (b) (c) terminally competent, suffering ill, is is is (d) (e) pain, agonizing death, faces imminent de- interests, preserving The state and other amici assert such as integrity profession protecting family medical friends and balancing against liberty of the suicide from emotional harm as recognized weigh interest here. Whether these interests in favor or against permitting terminally person depends ill to end his own life particular given on the clear circumstances of a case. It no is means always opposition that these interests would be in person’s liberty terminally ill interest. questionable why It has been said that it is such an interest is legitimate, "completely abstracted from the interest of the Cruzan, (Brennan, living supra J., dissenting). . . . .” life at 313. majority government properly "may But the Cruzan decided that judgments particu "quality” about decline make lar of life that a unqualified enjoy, simply an individual assert interest preservation . . . .” 282. human life Id. at nSee 10. Casey, 112 See S Ct 2820. Mich Mallett, J. (f) suicide, desires needs or to commit

sires help to do so. opinion "[n]o clear defini- contends

The lead legally medically or of 'terminal illness’ tion possible, only hindsight with in is it known since going certainty to die.”30 someone is when defining difficulty is, sure, in "termi- There to be avoiding justify the illness.” That does not nal issue.31 regulation safeguards, appropriate the

With may for in medical the differences state opinion account determining competent, ter-

in whether agonizing minally ill an imminent faces death. J., concurred with J. Levin,

Mallett, dissenting (concurring part J. in Mallett, part). opinion the would find that in Because lead right, any situation, in is no there constitutional through physician-prescribed hasten one’s death medications, part agree I with iv of the I dissent. opinion not that the assisted suicide act does lead Michigan Title-Object the Clause of the violate Constitution. agree part the I also with lead vi finding, modifying opinion’s the defi- common-law recognizing assisting nition of murder and suicide Ante, p n 34. Casey: As stated norms, legislatures may Consistent other constitutional with necessity appear arbitrary lines without draw offering justification. which justify the But courts not. We must viability we there is other than which lines is more workable. To be draw. And no line sure, said, may be as we have there precise developments point medical affect some viability, imprecision . . is an within limits . but this tolerable given apply community medical and all who must those [Id., explore its discoveries will continue to the matter. Ct 112 S 2817.] People v Kevorkian Mallett, J. qommon-law agree offense, as a and further that if assisting required pre- elements suicide are examining magistrate sented to an under the sav- ing clause, 750.505; 28.773, MCL MSA the defen- prosecution. dant I be shall bound over for criminal recognize part vi, that under defendant may possibly prosecuted this case be for murder. presented with the Confronted record to this Court, I would it find hard to that an believe examining magistrate could determine that merely defendant more up here was than involved leading the events to the commission of the chargeable prosecutable final overt act thus any assisting for than crime other suicide. Central position opinion’s to the lead are the statements legal part made conclusions reached in v. following pages my contain the reasons for dissent. strong arguments are

There based on moral principles issue, on both sides of this and this wary accepting arguments Court should be of solely principles. based on moral As the United Supreme States Court stated in Planned Parent- Pennsylvania Casey, hood of Southeastern v 505 833, —; 2791, 2806; US (1992), 112 S Ct 120 L 2d 674 Ed obligation liberty

"[o]ur is to define of Defining all, not to mandate our own moral code.” liberty, morality play therefore, cannot involve by group general any by disapproval by or majority liberty of this Court. The to end one’s suffering during a terminal illness exists as shown by Director, the decisions in Cruzan v Missouri Dep’t Health, 261; 2841; of 497 US 110 S Ct 111 L (1990), Ed 2d 224 In re 70 Quinlan, 10; NJ 355 A2d (1976), Garger Jersey, 647 cert den sub nom v New (1976), Compassion Dying 429 US 922 in v (WD 1994). Washington, Supp Wash, 850 F 1454 It approval significant exists without the of a consti- 436 Mich 526 Mallett, J. deserving recognition,

tuency than of is no less agree Furthermore, the court in I with is abortion. respects, Compassion Dying, that, in in some physician-assisted be easier to suicide competing recognize life inter- no there is because assertable the state. est I. THE AMENDMENT FOURTEENTH por- rights under the substantive conferred develop- of the Due Process Clause have been tion ing Mugler years. Kansas, v for over one hundred (1887). L 623; 273; 31 205 As 123 US Ct Ed S Casey, pointed Parenthood v S out Planned 2804, "a Process Clause contains sub- Ct Due 'barring component well, certain as one stantive regardless government of the fairness of actions ” implement quoting procedures them,’ used Williams, 331; 662; 106 S Ct v 474 US Daniels (1986).1 88 L Ed 2d presented claim here falls

The constitutional squarely within the Due Process Clause that maintains no Fourteenth Amendment liberty, "deprive any person life, shall or state Connecticut, 500-501; S Ct 381 US In Griswold (1965), concurrence, 2d 510 Justice Harlan outlined the L Ed reviewing brought pursuant claims criteria for Due Process constitutional stating Clause inquiry proper this case is whether [the]

the statute Amendment because the enactment violates basic values constitutional infringes Process of the Fourteenth the Due Clause "im- concept liberty,” plicit in the of ordered .... inquiry may be to one or While the relevant aided resort Rights, provisions dependent the Bill of it is not more any on them their radiations. [Citations omitted.] Constitution, "Specific” provisions no than "due of less interpreta- readily "personal” process,” lend themselves as simply keep by judges tions the Constitution in whose constitutional outlook is supposed with .... "tune the times” 527 v Kevorkian Opinion by Mallett, J. property, process due of law . . . As in without governing cases, the abortion word in this case "liberty.” opinion joint O’Connor, The of Ken- Justices reaffirming right nedy, Souter, a woman’s recognized abortion, to receive an cases such are at two "an intersection of lines of decisions Casey, . . . .” 112 S Ct 2810. These be cases exemplar liberty” viewed "an of as either Griswold examples "personal autonomy bodily or integrity citing Id., 2810, Cruzan, . . .” . 112 S Ct supra physician-assisted at 278.2 Whether suicide liberty right privacy is characterized .as a or a right, proper analysis constitutional is found Casey right and the to die cases. opinion

The lead and the various amici curiae in liberty only this case contend that interests exist " 'deeply where conduct is history rooted in Nation’s this ” " 'implicit and tradition’ or in the con cept liberty’ . . .” order . See v Bowers Hard wick, 478 191-192; US 106 92 L 2841; S Ct Ed (1986), quoting 2d 140 Connecticut, Palko v 302 US (1937), 319, 325-326; 149; S Ct 82 L Ed 288 Ohio, Moore Cleveland, v East 503; US right recognized The privacy that should be here is a as well Griswold, liberty right. supra, Supreme as a Court ation are Obstetricians & L privacy the United States recognized couples concerning procre that decisions of married private Thornburgh College in character. In v American 747, 777, Gynecologists, 5; 2169; n Ct US 106 S (1986), concept Ed 2d 779 Justice observed Stevens that "the person belongs embodies the 'moral fact to himself and ” society not others nor as a whole.’ present analogous family bodily integrity case is also liberty cases to the extent these cases extended interests to matters of public 210; Washington Harper, social concern. In v 494 US 110 S Ct 1028; (1990), 108 L 2d 178 Ed found that inmate has Court an significant liberty avoiding interest under Due Process Clause However, drugs. the unwanted administration of found that Court outweighed personal compelling the state’s liberty interest the inmate’s Loving Virginia, 1817; interest. In 388 US 18 L 87 S Ct Ed (1967), couples liberty 2d 1010 the Court held that have a interest to marry outside of their own race. Mich 436 447

528 Opinion Mallett, J. (1977). They argue that 531 1932; L Ed 2d S Ct 52 making background there is a common because physician- crimes, suicide and assisted suicide right. a fundamental cannot be assisted suicide right argue They found cannot be that also such anywhere amendments. or its in the constitution rights recognize only However, according fundamental to the vast is unsuitable for to such a test fast-moving progressions world. of the modern "source” of are not the laws or traditions Earlier liberty privacy so, our If this were interests. Supreme have been unable Court would nation’s recognize rights many us now under being.3 very As Justice inherent in our stand to be 3 not, it, specifically rior could States Constitution does The United applica- spell right individual. The maintains as an out each express principles Bill of princi- embodied in the constitutional tion Emanating only are Rights ples, from these resolves the easiest cases. however, implied rights interests that are no less specifically provided important to individual liberties than those Connecticut, supra. rights Rights. lie n 1 These Bill of Griswold v the within the through parameters Rights, applicable to the states of the Bill of Amendment. the Fourteenth Amendment, rights include Under the First these unarticulated associations, privacy v NAACP in one’s freedom to associate 1163; Patterson, 462; 2 L Ed 2d 78 S Ct Alabama ex rel 357 US parent’s (1958); right to educate a child in a school of Sisters, 510; 571; choice, Society 69 L Ed 45 S Ct language Pierce v US (1925); private right study the in a and the German 625; school, (1923). Nebraska, 390; Meyer 43 S Ct 67 L Ed v 262 US right Tangential to be free from to the Fourth Amendment from the is a limited to be free unlawful search and seizure unlawful withdrawal of blood. Schmerber v S Ct is the historical constitution’s California, 757; 86 384 US (1966). 1826; Amendment L 2d 908 Attached to the Ninth 16 Ed rights recognition exist outside the that additional plain wording. language history of the Ninth Amendment reveal The there are

that additional the Framers of the Constitution believed governmental rights, protected from fundamental rights alongside infringement, those fundamental which exist eight specifically constitutional amend- mentioned the first J., concurring).] [Griswold, supra (Goldberg, ments. at 488 liberty rights pursuant concept new The that courts construct Pursuant to the Fourteenth Amendment is well established. People v Kevorkian Mallett, J. Fano, stated in Meachum Stevens US (1976): 230; 96 S Ct 49 L Ed 2d 451 Rights the Bill of nor laws of [NJeither sovereign States liberty which the Due create Process protects. Clause constitu- relevant provisions power tional are limitations on the of sovereign infringe the liberty to on of the the citizen. The erty rights, prop- relevant state laws either create they

or curtail of the freedom the citizen who live in society. must an ordered Of course, law is essential enjoy- exercise and complex ment of liberty individual in a society. itBut is not the source of liberty, surely not the exclusive source. [Emphasis added.] Following opinion’s the lead logic to its conclu- sion, rights only fundamental would arise if Amendment, right marry Fourteenth person there is a fundamental to a Loving Virginia, persons supra. of another race. v Married right regarding contraception. the to medical have receive advice Connecticut, supra; Baird, 438; v Griswold Eisenstadt v 405 US 92 S (1972) 1029; (extending right 31 L Ed Ct persons); Carey 2d 349 the to unmarried Int’l, 678; 2010; Population v Services US 97 S 431 Ct (1977) (recognizing right Ed 2d 675 52 L contraceptives). the to sell and distribute pursuant Also to the Fourteenth is Amendment the line of cases protecting tion. Part of the unwanted medical person’s right personal autonomy a and self-determina- personal right autonomy right the to is to refuse treatment, Harper, Washington supra, v and of abortion, Wade, right 113; the an 410 course Ct receive Roe v US 93 S 705; (1973);Casey, supra. 35 L Ed 2d 147 rights is not This an list of the lie within exhaustive Rights, penumbras already of the Bill of both in terms of the cases as decided well as those to be decided in the future. As Justice Harlan Ullman, 497, 543; 1752; in dissent in declared L Ed uum” suicide constitution. Poe 367 US 81 S Ct (1961), along 2d matters fall all these "rational contin- rights. physician-assisted It is a mistake to focus on whether right textually body is a demonstrable within the liberty ending suffering during The individual interest one’s penumbras terminal illness lies within and Four- Ninth Furthermore, privacy right emanating teenth Amendments. from the Fourteenth Amendment to of made. As there is a guidance physician from seek knowledgeable so that an choice informed decision can be abortion, right right present with in the case privacy liberty right. be identified either as a 447 Mich 436 Opinion Maleett, J. " very constituency. significant 'The backed Rights purpose withdraw certain was to of a Bill of political subjects vicissitudes from the rights may controversy. not be [Fundamental . . . depend they vote; on the outcome of submitted no elections! ed), ” (2d Tribe, Law . . .’ Constitutional Virginia quoting p 1351, Bd of Ed v West 624, 638; 1178; 87 L Ed Barnette, 63 S Ct 319 US (1943). analysis Moreover, if the historical holding appropriate, in Roe v then the test 705; 35 L Ed Wade, 93 S Ct 2d US (1973), nothing exception more than an would be to the rule.4 DIE

A. THE RIGHT TO plaintiffs This Court should not demand that an historical to self determine establish quality terminally ill must of life that endure. suggests opinion the Cru- lead that because purposes merely "assumed” for the

zan Court right right that a has a constitutional that case life-sustaining to refuse treatment such squarely may presented if this not exist. Yet Court was issue, it it with that is doubtful contrary precedent rule to established would this state and others.5 applying "concept liberty” of ordered

Even 4 great for the Indeed there is a deal of historical antecedence proposition (tracing criminal offense. See Roe at 129-141 that abortion is a abortion). history the criminal (1992) Rosebush, 675; App Mich 491 NW2d 633 See In re right (allowing parents to determine whether life- of a minor the sustaining minor). from the treatment should be withheld or withdrawn 321; (1985); Conroy, A2d 1209 See also In re 98 NJ 1614, 1620; Lundgren, App Rptr 2 Cal 4th Cal 2d 59 Donaldson Cruzan, (1992); supra; supra Quinlan, at 270-274. See also anno: re treatment, life-sustaining power to Judicial ALR4th 67. order discontinuance People v Kevorkian Mallett, J. analysis espoused by the lead opinion, right to refuse life-sustaining treatment can recognized. be In Washington v Harper, 210; 494 US 110 S Ct (1990), 108 L Ed 2d 178 the United States Supreme Court found that competent person, even an inmate who suffers from psychotic epi- sodes, process has a due liberty interest be free from the unwanted administration of antipsychotic Further, In re case, medications.6 in the seminal Quinlan, supra at the New Jersey Supreme Court explicitly recognized such right: doubt, We have no unhappy these circum-

stances, if Karen were herself miraculously (not lucid for an altering interval existing prognosis of the condition to which she would soon return) perceptive of her irreversible condi- tion, she effectively upon could decide discontinu- ance of life-support apparatus, even if it meant prospect of natural death. We have no hesitancy deciding . . . that no external compelling interest of the State could compel unendurable, Karen to endure the only vegetate a few measurable months with no realis- possibility tic cognitive of returning any semblance of sapient life. Both Harper and Quinlan, establish that a com- petent person has a fundamental to refuse unwanted medical treatment. But more impor- tantly, Quinlan and its progeny establish that a person has a right to determine whether to con- tinue suffering when faced with an inevitable death and that the state not compel un- wanted lifesaving treatment._ 6However, ultimately the Court held that the state’s interest preserving orderly prisons administration of its and mental outweighed right personal autonomy. institutions the inmate’s Id. 436

532 447 Mich by Mallett, J. recognized jurisdictions Moreover, have other preserving life includes that the state’s interest right duty protect not to die of a recog- demeaning degrading To in a or manner.7 logical right simply nize the asserted here As Justice stated extension of the law.8 O’Connor 7 417, 434; England Hosp, Brophy 497 398 Mass See New Sinai (1986). preserve duty life NE2d 626 encompass "The of the State to must recognition individual’s to avoid circum of an that efforts to stances in which the individual himself would feel sustain degrade humanity.” life his See also Cruzan at demean 310-311. protects rights terminally This state also ill to refuse life- sustaining by statutory treatment as evidenced allowance of a patient advocate to make a decision to withhold or withdraw treat- ment. patient A advocate make a decision to withhold or patient only

withdraw treatment which would allow a to die if patient expressed convincing the that the and that the has in a clear and manner decision, patient advocate is authorized to make such a patient acknowledges that such a decision could or 700.496(7)(d); patient’s would allow the 27.5496(7)(d).] death. MSA [MCL polls increasing support physician-assisted Recent show for suicide August, Family under certain circumstances. In the Journal of reported survey by Practice on a conducted the Harvard School of percent Public that 61 of all vote for Health Americans would an Furthermore, legalizing physician-assisted per initiative suicide. option legal cent of Americans would such if it consider an was they terminally suffering great pain. were ill and from support among This sentiment also has the medical communities of survey the United internists and were and other A States westernized nations. surgeons percent agreed revealed that 61 that doctors practicing currently accelerating euthanasia either death or withholding ancient Greece to Messinger, gentle easy A treatment. See death: From beyond legal response Cruzan toward a reasoned (1993). euthanasia, the societal dilemma of 71 Den ULR Out physicians responding survey of 354 to a conducted the Medical Australia, provided patients Journal had However, the means which high could hasten their deaths. physicians circumstances. In survey, the number was twice as for thought changed who the law should be to allow it in some Britain, physicians responded to a similar physician-assisted half over would consider suicide in legal. some if it circumstances were recently, Oregon approved Most voters in the State of a referendum (the Act) Dignity physician-assisted Death with that would allow carefully regulated Physicians may pre- suicide under circumstances. People v Kevorkian Opinion by Mallett, J. supra "Requiring competent Cruzan, in at 289: procedures against adult to endure such her will patient’s liberty, dignity, burdens the and freedom to determine the course of her own treatment.”

B. PLANNED PARENTHOOD CASEY Casey, In Planned Parenthood v the United Supreme States ity Court reviewed the constitutional Pennsylvania of the Abortion Control Act and provisions whether its constituted an undue bur right den on a woman’s to receive an abortion. For purposes, aspect Casey our the most instructive was its reaffirmance of the basic tenets of Roe v right Wade and a woman’s fundamental to receive .9 an abortion opinion Casey recognized that not all the process rights substantive due were identifiable at drafting Rights the time of the of either Bill or the Fourteenth Amendment. constitution were also aware of this fact framers of the The. un- liberty derstood that could not be summarized in a single document, no matter how extensive. Justice pills patients live, scribe suicide with less than six months to but only patient opinion requests after a second medical and three from the patient mentally competent are received. The must also be depression. and free from clinical Casey, 112 S Ct the Court reaffirmed Roe’s essential three-part holding: recognition right First is a of the of the woman to choose to viability have an abortion before undue interference from the State. Before and to obtain it without viability, the State’s strong enough support prohibition interests are not abortion or the imposition of a substantial obstacle to the procedure. woman’s effective to elect the Second is a power confirmation of the State’s to restrict abortions after viability, exceptions pregnancies fetal if the law contains for endanger which a woman’s life or health. And third is the principle legitimate that the State has interests from the outset pregnancy protecting of the the health of the woman and the life of the fetus that become a child. 447 Mich 436 Mallett, J. v Ullman illustrates this Harlan’s assertion Poe principle best: scope guaranteed by liberty full "[T]he Due Clause cannot be found in or limited Process guarantees precise specific terms of provided in

elsewhere the Constitution. This 'lib- erty’ points pricked is not series of isolated out taking property; in terms of the speech, press, of the freedom of religion; right keep to arms; from bear freedom unreasonable seizures; searches and and so on. It is a rational which, speaking, broadly continuum includes a arbitrary impositions freedom from all substantial restraints, purposeless . . . and which álso recognizes, judg- what a and sensitive reasonable must, require particu- ment that certain interests larly scrutiny careful of the state needs asserted to abridgments.” justify [Casey, their S Ct Ullman, quoting 543; Poe v 81 S US Ct (1961) (Harlan, J., dissenting). 6 L Ed 2d Emphasis added.]

Thus, determining right the existence of a liberty constitution, involves a textual examination of the beliefs, an inward examination of a jurist’s and an analysis public of inclinations.

Justice O’Connor maintained: inescapable adjudication fact is that of sub- process stantive due upon claims call interpreting Court in the Constitution to exercise capacity that same ways which tradition courts al- judgment. have exercised: reasoned Its susceptible expression boundaries are not as a simple process rule. . . . "Due has not been re- any duced to . . . [Casey, formula .” S Ct Emphasis 2806. added.]

Even without approach, formulaic reasoned People v Kevorkian Opinion by Mallett, J. judgment coupled guidance with from the follow- ing language Casey provides insight some re- garding the existence of the right asserted here: protection per-

Our law affords constitutional to sonal relating marriage, procreation, decisions contraception, family relationships, rearing, child matters, and education. . . . involving These personal most intimate and make in dignity person may choices a lifetime, personal choices central autonomy, are liberty central protected by the Fourteenth Amendment. At the heart of liberty is the to define one’s own existence, concept meaning, universe, and of the mystery [Id., of human life. 112 S Ct Emphasis 2807. added.]

In the ordinary existence, course of some deci- sions remain personal so in nature that society is not in a position to make judgments about their appropriateness. It imagine difficult a more personal or intimate choice than determining nature or extent of one’s suffering during a termi- nal A person’s conscience, illness. coupled with the advice of an informed and chosen personally physi- cian, is the appropriate decision-making method.

Therefore, under the Casey "undue burden” I analysis, believe that the statute in- facially valid because it prohibits all physician-assisted suicide. As right cases, established in the to die person right has the to determine the extent of his suffering when faced with an inevitable death. A complete ban on physician-assisted suicide repre- sents an "undue burden” right on the ill to end terminally suffering through their physi- cian-prescribed medications. As in an in- Casey, fringement right of a fundamental the state Mich Opinion by Mallett, J. right completely bars the exercise of that pass

cannot constitutional muster.10 Dr. Kevorkian Court to find asks this that there right suffering person is a constitutional for a physician. commit suicide with the assistance of a people always However, I do not believe that can competent regarding make decisions their fate suffering while because too often there are circum- stances in which such decisions would be later regarded as mistakes. recognize

Plaintiffs ask this that a Court person terminally right ill has a fundamental hasten an inevitable death. To the extent that the plaintiff recognize asks this Court to termi- person nally right ill has an absolute to make a death, choice to hasten an inevitable I believe this swings pendulum Instead, too far. I would terminally person conclude that a ill has such a right only person competent if the has made a only directly addressing constitutionality In the case other law, Compassion Dying Washington, supra, an assisted suicide constitutionality the court was asked to rule on the of the State of Washington’s assisted suicide law. questions The court stated that abortion raises even more difficult competing terminally about reproductive rights interests than does suicide ill. "In cases, only preg- there is not the interest of the abortion, seeking potential nant woman an but also the life interest speak contrast, By which cannot for itself. in the case of assisted involving competent person, only suicide one life is involved and Significantly, that individual can voice his or her wishes.” Id. at 1460. "concept language Casey the was "almost found court that the of existence” from prescriptive” recognizing of an individual to 1459, citing Casey, supra, commit suicide. Id. at 112 S Ct 2807. The court concluded: suffering terminally of a ill cannot be deemed "[T]he any personal, any deserving protec- less intimate or less interference, governmental tion from unwarranted a than that of Thus, pregnant reasoning woman. consonant with the Casey, personal such an intimate decision falls within the constitutionally protected realm of the liberties under Emphasis

Fourteenth Amendment.” at 1460. [Id. added.] People v Kevorkian by Opinion Mallett, J. suffering great pain.11 decision and is from Because plaintiffs position require- are in a to meet such a ought prospect ment, the Court not allow the Supreme reversal United the States Court to analysis very inhibit the real constitutional presented by plaintiffs. Beyond claims this criteria, I would hold that the state assert its preserve interest life as well as other estab- Therefore, lished interests. because statute prohibits completely physician-assisted suicide, I facially believe that it is invalid. say

This, course, is not to that the state does readily not have a interest in this identifiable legitimate area. The state preservation has interest in the citizenry. However, of the lives of its all-encompassing are not interests interests physician- that would allow a blanket ban on imposes assisted suicide. "The Constitution Court on this obligation carefully 'examine . . . the legitimate government [the extent which inter- challenged advanced] ests regulation.’ are served ” (Brennan, J., Cruzan at 303 dissent- ing, quoting 499). supra Cleveland, Moore v East at preservation in the interest of life that is present advanced the state is case not by preserving person served inevitably the life of a who will suffering pain.

die and is intolerable II. THE STATE’S INTEREST arguable possesses itWhile that each of us right to commit suicide because suicide is no lon- ger punishable, right, criminally exists, such a if it party is not absolute when a third is involved. my colleague’s (Levin, J., signed opinion concurring 11 1have dissenting part), part recognize that a who is suffering great pain facing terminally ill and from and is an immi process right nent death falls within the confines of the due I would recognize here. 538 447 Mich Opinion Mallett, J. protecting rights

Indeed, the and interests of third parties underpins both our constitutional doctrine Accordingly, and criminal laws. I do not embrace suggestion person may the right that because a have the suicide,

to commit he also has an uncondi- right physician-assisted tional constitutional right physician-assisted Rather, suicide. the sui- against countervailing must cide be balanced society. interests of the state and There are four main interests in this area that (1) preservation be asserted the state: (2) protection parties, life, of of innocent third (3) (4) prevention suicide, of the mainte- integrity pro- nance of the ethical of the medical App Rosebush, fession. In re 681; Mich (1992); Conroy, 491 NW2d 633 In re 98 NJ (1985); Lundgren, 486 A2d 1209 Donaldson v 2 Cal App (1992); Rptr 1614, 1620; 4th 4 Cal 2d power Cruzan at 269-271. See also anno: Judicial life-sustaining to order discontinuance of treat- ment, 48 ALR4th 67. These authorities have uni- " formly maintained that a 'state’s interest in the preservation of life has been held to be insufficient outweigh right the individual where the life preserved which would be would be one in a a merely vegetative enduring only state or one of prolonged process dying ....’” Rosebush at Similarly, 681, n 2. there does not exist a suffi- ciently compelling justification infringe- for the right competent, terminally ment of the of a ill person suffering great pain from to hasten death through physician-prescribed medications. person’s progresses point

As a illness facing suffering great an inevitable death while pain, put the state cannot forth a ration- sufficient proscribe completely physician-assisted ale to sui- Brophy England Hosp, cide. In v New Sinai (1986), 417, 433; Mass 497 NE2d 626 the Massa- v Kevorkian Maiaett, J. Supreme Judicial Court balanced chusetts preservation of human life in the state’s interest against individ- self-determination and autonomy. noted that the state’s The court ual prolongation ordinarily involves the interest "very high interest life and that human the afflic- [can] saved where 'human life be when ” Superintendent Quoting tion is curable.’ Saikewicz, 373 Mass State School v Belchertown (1977). However, court 728, 742; 370 NE2d diminishes as the further noted that prognosis this interest Brophy, recovery 398 Mass for wanes. suffering person Thus, is from 433. when a subjective disease, avoid the state should terminal person’s concerning quality judgments the of that life.12 require such decisions also that state requirement competently.13 has Such a

be made previous courts as well. fashioned been George- Application of & Directors of President College, App 80; 331 F2d Inc, 118 US DC town 1000

(1964), right patients the ithe court denied lifesaving for themselves refuse treatment to 12 supra Quinlan, at 41. See also . . . and the think that the State’s interest to weakens We bodily right privacy grows degree of as the

individual’s invasion Ultimately prognosis there increases and the dims. rights point the the individual’s overcome comes a State interest. at which context, Moreover, judg- "Roe v Wade was less in the abortion life, importance liberty and fetal of maternal ment about the relative judgments of that make it a decision about who should than was Tribe, Law, p (contending supra, that the Constitutional sort.” decision is state). mother, Here, it the personal is not circumstances, who, appropriate should make individual through physician-prescribed medications. hasten death decision to consent is viewed as doctrine of informed common-law [T]he right competent encompassing individual generally of a [Cruzan, supra at 277.] refuse medical treatment. Mich Opinion by Mallett, J. strongly suggesting they circumstances lack capacity the time or the for reflection on the likely matter, so that the course least to do irre- proceeding versible harm was an insistence on with treatment. right

Patients have been denied the to refuse life-sustaining they medical treatment where did capacity adequate opportunity not have the or an finality e.g., See, reflect on the of the decision. Osgood (D Supp v Columbia, Dist of 567 F 1983). Additionally, sug- DC, the Quinlan court gested pain that a in extreme shock or incapable making truly informed decision. 70 citing Kennedy Hosp NJ F John Memorial (1971). Heston, 58 NJ 279 A2d 670 scope Dr. Kevorkian’s actions are within the protected the state’s interests. To the extent that a country sanctions the assisted suicide of the suffer- ing, it does so at the risk of harm to its most e.g., elderly vulnerable of citizens: and the depressed. clinically extending any Furthermore, suffer- ing person making begs a rational decision almost question. widely acknowledged It has been attempt suffering most individuals who suicide are depression, hopelessness, from or lack of social attempts merely interaction. Often such are "cries help.” pressures for There are also socioeconomic on individuals that make them consider suicide as grief, a means of relief. Circumstances such as prejudice, oppression, teenage stress are often by people attempting the reasons cited suicide. Marzen, O’Dowd, Balch, Crone & Suicide: A consti- (1985). right?, Duq tutional LR1 right legislate Therefore, the state has a to However, this area. as death nears for a the state’s interests diminish

terminally person; ill longer outweigh interests are no sufficient to an People v Kevorkian Opinion by Mallett, J. right individual’s to self-determination. Such an Compassion outcome would be consistent with supra, recognized Dying, in which the court competent, right mentally terminally ill adults knowingly voluntarily to hasten their deaths.

III. CONCLUSION facially The statute at issue should be deemed it all A invalid because bans assisted suicides. terminally suffering ill individual who is from great pain competent and who has made a decision process right should have a constitutional due to plaintiffs posi- hasten his death. Because are in a I tion to now make choice that believe should any challenge state, survive that from the I would hold represents an statute undue burden on right. assumption recognition of this right problematic would be in its administration is appropriate not an ing consideration when determin- right. Indeed, the existence of a fundamental litigation necessity constitutional often creates the practice draw abstract lines that are not recognition easily Nevertheless, workable. rights requires fundamental that are not choices in these areas particular

readily any ascribable to administrative device. development only

We need look to the living example guidelines in the will as an dying effectively death and remain constitutional. Pursuant area that work 700.496; MCL competent person already 27.5496, MSA has the right lifesaving to document the desire to refuse pro- medical treatment. While such documentation life-sustaining vides us with treatment, to refuse currently permit our laws do not us suffering near death choose to end our as we Mich Opinion by Mallett, J. through physician-prescribed If medications. we opportunity, were such allowed an our own rea- judgment prevail soned would case. each adequate There is no distinction between the right person terminally of a ill to refuse unwanted right physician- medical assisted suicide. There is no treatment and the to disallowing

sense competent physician the vene to relieve one’s life. choice to have a inter- suffering

intolerable at end of Furthermore, such a result conflicts with many what of us would desire when faced with pain severe and an inevitable death.

Many citizens of this state are disturbed defendant and, Kevorkian’s crusade at the same time, wish see a resolution of the difficulties facing terminally Perhaps ill. even more trou- bling that, law, is under this an individual is consulting private, from forbidden physician right with a trusted recognition about such matters. The of a private such make decisions with trusted physician open would allow and honest discussion patient options consequences. with the of all process invariably Substantive due cases address rights those that that are considered so fundamental they unduly cannot be burdened the state. fundamentally wrong Here, competent, it is not to allow a

terminally suffering ill who great pain opportunity from to die with some dignity. plaintiffs may

Therefore, I would hold physician-assisted assert a constitutional they if it can suicide competent be shown that have made a great suffering decision are from pain. allow, I further would consistent with Cru- may require proof zan, that the state of such a competent convincing clear decision evi- legislate. dence if it chooses to so judgment I would reverse the of the Court of v Kevorkian J. Mallett, plaintiffs Appeals their and allow to document physician-prescribed medications intent to receive progress to the should their terminal illnesses point great pain. Mallett,

Levin, J., concurred with J.

Case Details

Case Name: People v. Kevorkian

Court Name: Michigan Supreme Court

Date Published: Dec 13, 1994

Citation: 527 N.W.2d 714

Docket Number: Docket Nos. 99591, 99674, 99752, 99758, 99759, (Calendar No. 1)

Court Abbreviation: Mich.