Lead Opinion
delivered the opinion of the Court.
The question presented in this ease is whether Washington’s prohibition against “caus[ing]” or “aid[ing]” a suicide
It has always been a crime to assist a suicide in the State of Washington. In 1854, Washington’s first Territorial Leg
Petitioners in this case are the State of Washington and its Attorney General. Respondents Harold Glucksberg, M. D., Abigail Halperin, M. D., Thomas A. Preston, M. D., and Peter Shalit, M. D., are physicians who practice in Washington. These doctors occasionally treat terminally ill, suffering patients, and declare that they would assist these patients in ending their lives if not for Washington’s assisted-suicide ban.
The plaintiffs asserted “the existence of a liberty interest protected by the Fourteenth Amendment which extends to a personal choice by a mentally competent, terminally ill adult to commit physician-assisted suicide.” Ibid. Relying primarily on Planned Parenthood of Southeastern Pa. v. Casey,
A panel of the Court of Appeals for the Ninth Circuit reversed, emphasizing that “[i]n the two hundred and five years of our existence no constitutional right to aid in killing
More specifically, for over 700 years, the Anglo-American common-law tradition has punished or otherwise disapproved of both suicide and assisting suicide.
For the most part, the early American Colonies adopted the common-law approach. For example, the legislators of the Providence Plantations, which would later become Rhode Island, declared, in 1647, that “[sjelf-murder is by all agreed to be the most unnatural, and it is by this present Assembly declared, to be that, wherein he that doth it, kills himself out
Over time, however, the American Colonies abolished these harsh common-law penalties. William Penn abandoned the criminal-forfeiture sanction in Pennsylvania in 1701, and the other Colonies (and later, the other States) eventually followed this example. Cruzan, supra, at 294 (Scalia, J., concurring). Zephaniah Swift, who would later become Chief Justice of Connecticut, wrote in 1796:
“There can be no act more contemptible, than to attempt to punish an offender for a crime, by exercising a mean act of revenge upon lifeless clay, that is insensible of the punishment. There can be no greater cruelty, than the inflicting [of] a punishment, as the forfeiture of goods, which must fall solely on the innocent offspring of the offender. . . . [Suicide] is so abhorrent to the feelings of mankind, and that strong love of life which is implanted in the human heart, that it cannot be so frequently committed, as to become dangerous to society. There can of course be no necessity of any punishment.” 2 Z. Swift, A System of the Laws of the State of Connecticut 304 (1796).
This statement makes it clear, however, that the movement away from the common law’s harsh sanctions did not represent an acceptance of suicide; rather, as Chief Justice Swift observed, this change reflected the growing consensus that it was unfair to punish the suicide’s family for his wrongdoing. Cruzan, supra, at 294 (Scalia, J., concurring). Nonethe
That suicide remained a grievous, though nonfelonious, wrong is confirmed by the fact that colonial and early state legislatures and courts did not retreat from prohibiting assisting suicide. Swift, in his early 19th-century treatise on the laws of Connecticut, stated that “[i]f one counsels another to commit suicide, and the other by reason of the advice kills himself, the advisor is guilty of murder as principal.” 2 Z. Swift, A Digest of the Laws of the State of Connecticut 270 (1823). This was the well-established common-law view, see In re Joseph G.,
The earliest American statute explicitly to outlaw assisting suicide was enacted in New York in 1828, Act of Dec. 10, 1828, ch. 20, § 4, 1828 N. Y. Laws 19 (codified at 2 N. Y. Rev. Stat. pt. 4, ch. 1, Tit. 2, Art. 1, § 7, p. 661 (1829)), and many of the new States and Territories followed New York’s example. Marzen 73-74. Between 1857 and 1865, a New York commission led by Dudley Field drafted a criminal code that prohibited “aiding” a suicide and, specifically, “furnishing] another person with any deadly weapon or poisonous drug, knowing that such person intends to use such weapon or drug in taking his own life.” Id., at 76-77. By the time the Fourteenth Amendment was ratified, it was a crime in most States to assist a suicide. See Cruzan,
Though deeply rooted, the States’ assisted-suicide bans have in recent years been reexamined and, generally, reaffirmed. Because of advances in medicine and technology, Americans today are increasingly likely to die in institutions, from chronic illnesses. President’s Comm’n for the Study of Ethical Problems in Medicine and Biomedical and Behavioral Research, Deciding to Forego Life-Sustaining Treatment 16-18 (1983). Public concern and democratic action are. therefore sharply focused on how best to protect dignity and independence at the end of life, with the result that there have been many significant changes in state laws and in the attitudes these laws reflect. Many States, for example, now permit “living wills,” surrogate health-care decisionmaking, and the withdrawal or refusal of life-sustaining medical treatment. See Vacco v. Quill, post, at 804-806;
The Washington statute at issue in this case, Wash. Rev. Code § 9A.36.060 (1994), was enacted in 1975 as part of a revision of that State’s criminal code. Four years later,
California voters rejected an assisted-suicide initiative similar to Washington’s in 1993. On the other hand, in 1994, voters in Oregon enacted, also through ballot initiative, that State’s “Death With Dignity Act,” which legalized physician-assisted suicide for competent, terminally ill adults.
Attitudes toward suicide itself have changed since Brac-ton, but our laws have consistently condemned, and continue to prohibit, assisting suicide. Despite changes in medical technology and notwithstanding an increased emphasis on the importance of end-of-life decisionmaking, we have not retreated from this prohibition. Against this backdrop of history, tradition, and practice, we now turn to respondents’ constitutional claim.
II
The Due Process Clause guarantees more than fair process, and the “liberty” it protects includes more than the absence of physical restraint. Collins v. Harker Heights,
But we “ha[ve] always been reluctant to expand the concept of substantive due process because guideposts for responsible decisionmaking in this unchartered area are scarce and open-ended.” Collins,
Our established method of substantive-due-process analysis has two primary features: First, we have regularly observed that the Due Process Clause specially protects those fundamental rights and liberties which are, objectively,
Justice Souter, relying on Justice Harlan’s dissenting opinion in Poe v. Ullman,
Turning to the claim at issue here, the Court of Appeals stated that “ [p]roperly analyzed, the first issue to be resolved is whether there is a liberty interest in determining the time and manner of one’s death,”
We now inquire whether this asserted right has any place in our Nation’s traditions. Here, as discussed supra, at 710-719, we are confronted with a consistent and almost universal tradition that has long rejected the asserted right, and continues explicitly to reject it today, even for terminally ill, mentally competent adults. To hold for respondents, we would have to reverse centuries of legal doctrine and practice, and strike down the considered policy choice of almost every State. See Jackman v. Rosenbaum Co.,
Respondents contend, however, that the liberty interest they assert is consistent with this Court’s substantive-due-
In Cruzan, we considered whether Nancy Beth Cruzan, who had been severely injured in an automobile accident and was in a persistive vegetative state, “ha[d] a right under the United States Constitution which would require the hospital to withdraw life-sustaining treatment” at her parents’ request.
Respondents contend that in Cruzan we “acknowledged that competent, dying persons have the right to direct the removal of life-sustaining medical treatment and thus hasten death,” Brief for Respondents 23, and that “the constitutional principle behind recognizing the patient’s liberty to direct the withdrawal of artificial life support applies at least as strongly to the choice to hasten impending death by consuming lethal medication,” id., at 26. Similarly, the Court of Appeals concluded that “Cruzan, by recognizing a liberty interest that includes the refusal of artificial provision of life-sustaining food and water, necessarily recognize[d] a liberty interest in hastening one’s own death.”
The right assumed in Cruzan, however, was not simply deduced from abstract concepts of personal autonomy. Given the common-law rule that forced medication was a battery, and the long legal tradition protecting the decision to refuse unwanted medical treatment, our assumption was entirely consistent with this Nation’s history and constitutional traditions. The decision to commit suicide with the assistance of another may be just as personal and profound as the decision to refuse unwanted medical treatment, but it has never enjoyed similar legal protection. Indeed, the two acts are widely and reasonably regarded as quite distinct. See Quill v. Vacco, post, at 800-808. In Cruzan itself, we recognized that most States outlawed assisted suicide — and even more do today — and we certainly gave no intimation that the right to refuse unwanted medical treatment could be some
Respondents also rely on Casey. There, the Court’s opinion concluded that “the essential holding of Roe v. Wade[,
The Court of Appeals, like the District Court, found Casey “ ‘highly instructive’ ” and “ ‘almost prescriptive’ ” for determining “ ‘what liberty interest may inhere in a terminally ill person’s choice to commit suicide’
“Like the decision of whether or not to have an abortion, the decision how and when to die is one of ‘the most intimate and personal choices a person may make in a lifetime,’ a choice ‘central to personal dignity and autonomy.’”79 F. 3d, at 813-814 .
Similarly, respondents emphasize the statement in Casey that:
“At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life. Beliefs about these matters could not define the attributes of personhood were they*727 formed under compulsion of the State.”505 U. S., at 851 .
Brief for Respondents 12. By choosing this language, the Court’s opinion in Casey described, in a general way and in light of our prior eases, those personal activities and decisions that this Court has identified as so deeply rooted in our history and traditions, or so fundamental to our concept of constitutionally ordered liberty, that they are protected by the Fourteenth Amendment.
The history of the law’s treatment of assisted suicide in this country has been and continues to be one of the rejection of nearly all efforts to permit it. That being the case, our decisions lead us to conclude that the asserted “right” to assistance in committing suicide is not a fundamental liberty interest protected by the Due Process Clause. The Constitution also requires, however, that Washington’s assisted-suicide ban be rationally related to legitimate government interests. See Heller v. Doe,
First, Washington has an “unqualified interest in the preservation of human life.” Cruzan,
“While suicide is no longer prohibited or penalized, the ban against assisted suicide and euthanasia shores up the notion of limits in human relationships. It reflects the gravity with which we view the decision to take one’s own life or the life of another, and our reluctance to encourage or promote these decisions.” New York Task Force 131-132.
Respondents admit that “[t]he State has a real interest in preserving the lives of those who can still contribute to society and have the potential to enjoy life.” Brief for Respondents 35, n. 23. The Court of Appeals also recognized Washington’s interest in protecting life, but held that the “weight” of this interest depends on the “medical condition and the wishes of the person whose life is at stake.”
Relatedly, all admit that suicide is a serious public-health problem, especially among persons in otherwise vulnerable groups. See Washington State Dept. of Health, Annual Summary of Vital Statistics 1991, pp. 29-30 (Oct. 1992) (suicide is a leading cause of death in Washington of those between the ages of 14 and 54); New York Task Force 10, 23-33 (suicide rate in the general population is about one percent, and suicide is especially prevalent among the young and the elderly). The State has an interest in preventing suicide, and in studying, identifying, and treating its causes. See
Those who attempt suicide — terminally ill or not — often suffer from depression or other mental disorders. See New York Task Force 13-22, 126-128 (more than 95% of those who commit suicide had a major psychiatric illness at the time of death; among the terminally ill, uncontrolled pain is a “risk factor” because it contributes to depression); Physician-Assisted Suicide and Euthanasia in the Netherlands: A Report of Chairman Charles T. Canady to the Subcommittee on the Constitution of the House Committee on the Judiciary, 104th Cong., 2d Sess., 10-11 (Comm. Print 1996); cf. Back, Wallace, Starks, & Pearlman, Physician-Assisted Suicide and Euthanasia in Washington State, 275 JAMA 919, 924 (1996) (“[Intolerable physical symptoms are not the reason most patients request physician-assisted suicide or euthanasia”). Research indicates, however, that many people who request physician-assisted suicide withdraw that request if their depression and pain are treated. H. Hendin, Seduced by Death: Doctors, Patients and the Dutch Cure 24-25 (1997) (suicidal, terminally ill patients “usually respond well to treatment for depressive illness and pain medication and are then grateful to be alive”); New York Task Force 177-178.
The State also has an interest in protecting the integrity and ethics of the medical profession. In contrast to the Court of Appeals’ conclusion that “the integrity of the medical profession would [not] be threatened in any way by [physician-assisted suicide],”
Next, the State has an interest in protecting vulnerable groups — including the poor, the elderly, and disabled persons — from abuse, neglect, and mistakes. The Court of Appeals dismissed the State’s concern that disadvantaged persons might be pressured into physician-assisted suicide as
The State’s interest here goes beyond protecting the vulnerable from coercion; it extends to protecting disabled and terminally ill people from prejudice, negative and inaccurate stereotypes, and “societal indifference.”
Finally, the State may fear that permitting assisted suicide will start it down the path to voluntary and perhaps even involuntary euthanasia. The Court of Appeals struck down
We need not weigh exactingly the relative strengths of these various interests. They are unquestionably important and legitimate, and Washington’s ban on assisted suicide is at least reasonably related to their promotion and protection. We therefore hold that Wash. Rev. Code § 9A.36.060(1) (1994) does not violate the Fourteenth Amendment, either on its face or “as applied to competent, terminally ill adults who wish to hasten their deaths by obtaining medication prescribed by their doctors.”
* * *
Throughout the Nation, Americans are engaged in an earnest and profound debate about the morality, legality, and practicality of physician-assisted suicide. Our holding permits this debate to continue, as it should in a democratic society. The decision of the en banc Court of Appeals is
It is so ordered.
Notes
Act of Apr. 28, 1854, § 17, 1854 Wash. Laws 78 (“Every person deliberately assisting another in the commission of self-murder, shall be deemed guilty of manslaughter”); see also Act of Dec. 2, 1869, § 17, 1869 Wash. Laws 201; Act of Nov. 10,1873, § 19,1873 Wash. Laws 184; Criminal Code, ch. 249, §§ 135-136,1909 Wash. Laws, 11th Sess., 929.
Under Washington’s Natural Death Act, “adult persons have the fundamental right to control the decisions relating to the rendering of their own health care, including the decision to have life-sustaining treatment withheld or withdrawn in instances of a terminal condition or permanent unconscious condition.” Wash. Rev. Code §70.122.010 (1994). In Washington, “[a]ny adult person may execute a directive directing the withholding or withdrawal of life-sustaining treatment in a terminal condition or permanent unconscious condition,” §70.122.030, and a physician who, in accordance with such a directive, participates in the withholding or withdrawal of life-sustaining treatment is immune from civil, criminal, or professional liability, §70.122.051.
Glucksberg Declaration, App. 35; Halperin Declaration, id,., at 49-50; Preston Declaration, id., at 55-56; Shalit Declaration, id., at 73-74.
John Doe, Jane Roe, and James Poe, plaintiffs in the District Court, were then in the terminal phases of serious and painful illnesses. They declared that they were mentally competent and desired assistance in ending their lives. Declaration of Jane Roe, id., at 23-25; Declaration of John Doe, id., at 27-28; Declaration of James Poe, id., at 30-31; Compassion in Dying,
The District Court determined that Casey’s “undue burden” standard,
Although, as Justice Stevens observes, post, at 739 (opinion concurring in judgments), “[the court’s] analysis and eventual holding that the statute was unconstitutional was not limited to a particular set of plaintiffs before it,” the court did note that “[declaring a statute unconstitutional as applied to members of a group is atypical but not uncommon.”
The Court of Appeals did note, however, that “the equal protection argument relied on by [the District Court] is not insubstantial,”
See Compassion in Dying v. Washington,
The common law is thought to have emerged through the expansion of pre-Norman institutions sometime in the 12th century. J. Baker, An Introduction to English Legal History 11 (2d ed. 1979). England adopted the ecclesiastical prohibition on suicide five centuries earlier, in the year 673 at the Council of Hereford, and this prohibition was reaffirmed by King Edgar in 967. See G. Williams, The Sanctity of Life and the Criminal Law 257 (1957).
Marzen 59. Other late-medieval treatise writers followed and restated Bracton; one observed that “man-slaughter” may be “[ojf [one]self; as in ease, when people hang themselves or hurt themselves, or otherwise kill themselves of their own felony” or “[o]f others; as by beating, famine, or other punishment; in like eases, all are man-slayers.” A. Horne, The Mirrour of Justices, ch. 1, § 9, pp. 41-42 (W. Robinson ed. 1903). By the mid-16th century, the Court at Common Bench could observe that “[suicide] is an Offence against Nature, against God, and against the King.. .. [T]o destroy one’s self is contrary to Nature, and a Thing most horrible.” Hales v. Petit, 1 Plowd. Com. 253, 261, 75 Eng. Rep. 387, 400 (1561-1562).
In 1644, Sir Edward Coke published his Third Institute, a lodestar for later common lawyers. See T. Plucknett, A Concise History of the Common Law 281-284 (5th ed. 1956). Coke regarded suicide as a category of murder, and agreed with Bracton that the goods and chattels — but not, for Coke, the lands — of a sane suicide were forfeit. 3 E. Coke, Institutes *54. William Hawkins, in his 1716 Treatise of the Pleas of the Crown, followed Coke, observing that “our laws have always had ... an abhorrence of this crime.” 1 W. Hawkins, Pleas of the Crown, ch. 27, § 4, p. 164 (T. Leach ed. 1795).
In 1850, the California Legislature adopted the English common law, under which assisting suicide was, of course, a crime. Act of Apr. 13, 1850, ch. 95, 1850 Cal. Stats. 219. The provision adopted in 1874 provided that “[e]very person who deliberately aids or advises, or encourages another to commit suicide, is guilty of a felony.” Act of Mar. 30, 1874, ch. 614, § 13,400 (codified at Cal. Penal Code § 400 (T. Hittel ed. 1876)).
“A person who purposely aids or solicits another to commit suicide is guilty of a felony in the second degree if his conduct causes such suicide or an attempted suicide, and otherwise of a misdemeanor.” American Law Institute, Model Penal Code § 210.5(2) (Official Draft and Revised Comments 1980).
Initiative 119 would have amended Washington’s Natural Death Act, Wash. Rev. Code § 70.122.010 et seq. (1994), to permit “aid-in-dying,” defined as “aid in the form of a medical service provided in person by a physician that will end the life of a conscious and mentally competent qualified patient in a dignified, painless and humane manner, when requested voluntarily by the patient through a written directive in accordance with this chapter at the time the medical service is to be provided.” App. H to Pet. for Cert. 3-4.
Ore. Rev. Stat. § 127.800 et seq. (1996); Lee v. Oregon,
See, e.g., Alaska H. B. 371 (1996); Ariz. S. B. 1007 (1996); Cal. A. B. 1080, A. B. 1310 (1995); Colo. H. B. 1185 (1996); Colo. H. B. 1308 (1995); Conn. H. B. 6298 (1995); Ill. H. B. 691, S. B. 948 (1997); Me. H. P. 663 (1997); Me. H. P. 552 (1995); Md. H. B. 474 (1996); Md. H. B. 933 (1995); Mass. H. B. 3173 (1995); Mich. H. B. 6205, S. B. 556 (1996); Mich. H. B. 4134
Other countries are embroiled in similar debates: The Supreme Court of Canada recently rejected a claim that the Canadian Charter of Rights and Freedoms establishes a fundamental right to assisted suicide, Rodriguez v. British Columbia (Attorney General), 107 D. L. R. (4th) 342 (1993); the British House of Lords Select Committee on Medical Ethics refused to recommend any change in Great Britain’s assisted-suicide prohibition, House of Lords, Session 1993-94 Report of the Select Committee on Medical Ethics, 12 Issues in Law & Med. 193, 202 (1996) (“We identify no circumstances in which assisted suicide should be permitted”); New Zealand’s Parliament rejected a proposed “Death With Dignity Bill” that would have legalized physician-assisted suicide in August 1995, Graeme, MPs Throw out Euthanasia Bill, The Dominion (Wellington), Aug. 17, 1995, p. 1; and the Northern Territory of Australia legalized assisted suicide and voluntary euthanasia in 1995, see Shenon, Australian Doctors Get Right to Assist Suicide, N. Y. Times, July 28,1995, p. A8. As of February 1997, three persons had ended their lives with physician assistance in the Northern Territory. Mydans, Assisted Suicide: Australia Faces a Grim Reality, N. Y. Times, Feb. 2,1997, p. A3. On March 24,1997, however, the Australian Senate voted to overturn the Northern Territory’s law. Thornhill, Australia Repeals Euthanasia Law, Washington Post, Mar. 25, 1997, p. A14; see Euthanasia Laws Act 1997, No. 17,1997 (Austl.). On the other hand, on May 20,1997, Colombia’s Constitutional Court legalized voluntary euthanasia for terminally ill people. C-239/97 de Mayo 20, 1997, Corte
In Justice Souter’s opinion, Justice Harlan’s Poe dissent supplies the “modern justification” for substantive-due-process review. Post, at 756, and n. 4 (opinion concurring in judgment). But although Justice Harlan’s opinion has often been cited in due process cases, we have never abandoned our fundamental-rights-based analytical method. Just four Terms ago, six of the Justices now sitting joined the Court’s opinion in Reno v. Flores,
See, e. g., Quill v. Vacco,
See Moore v. East Cleveland,
The court identified and discussed six state interests: (1) preserving life; (2) preventing suicide; (3) avoiding the involvement of third parties and use of arbitrary, unfair, or undue influence; (4) protecting family members and loved ones; (5) protecting the integrity of the medical profession; and (6) avoiding future movement toward euthanasia and other abuses.
Respondents also admit the existence of these interests, Brief for Respondents 28-39, but contend that Washington could better promote and protect them through regulation, rather than prohibition, of physician-assisted suicide. Our inquiry, however, is limited to the question whether the State’s prohibition is rationally related to legitimate state interests.
The States express this commitment by other means as well: “[N]early all states expressly disapprove of suicide and assisted suicide either in statutes dealing with durable powers of attorney in health-care situations, or in ‘living will’ statutes. In addition, all states provide for the involuntary commitment of persons who may harm themselves as the result of mental illness, and a number of states allow the use of nondeadly force to thwart suicide attempts.” People v. Kevorkian,
Justice Souter concludes that “[t]he case for the slippery slope is fairly made out here, not because recognizing one due process right would leave a court with no principled basis to avoid recognizing another, but because there is a plausible ease that the right claimed would not be readily containable by reference to facts about the mind that are matters of difficult judgment, or by gatekeepers who are subject to temptation, noble or not.” Post, at 785 (opinion concurring in judgment). We agree that the case for a slippery slope has been made out, but — bearing in mind’ Justice Cardozo’s observation of “[t]he tendency of a principle to expand itself to the limit of its logic,” The Nature of the Judicial Process 51 (1932) — we also recognize the reasonableness of the widely expressed
Justice Stevens states that “the Court does conceive of respondents’ claim as a facial challenge — addressing not the application of the statute to a particular set of plaintiffs before it, but the constitutionality of the statute’s categorical prohibition ....” Post, at 740 (opinion concurring in judgments). We emphasize that we today reject the Court of Appeals’ specific holding that the statute is unconstitutional “as applied” to a particular class. See n. 6, supra. Justice Stevens agrees with this holding, see post, at 750, but would not “foreclose the possibility that an individual plaintiff seeking to hasten her death, or a doctor whose assistance was sought, could prevail in a more particularized challenge,” ibid. Our opinion does not absolutely foreclose such a claim. However, given our holding that the Due Process Clause of the Fourteenth Amendment does not provide heightened protection to the asserted liberty interest in ending one’s life with a physician’s assistance, such a claim would have to be quite different from the ones advanced by respondents here.
Concurrence Opinion
concurring.
Death will be different for each of us. For many, the last days will be spent in physical pain and perhaps the despair that accompanies physical deterioration and a loss of control of basic bodily and mental functions. Some will seek medication to alleviate that pain and other symptoms.
The Court frames the issue in Washington v. Glucksberg as whether the Due Process Clause of the Constitution protects a "right to commit suicide which itself includes a right to assistance in doing so,” ante, at 723, and concludes that our Nation’s history, legal traditions, and practices do not support the existence of such a right. I join the Court’s opinions because I agree that there is no generalized right to “commit suicide.” But respondents urge us to address the narrower question whether a mentally competent person who is experiencing great suffering has a constitutionally cognizable interest in controlling the circumstances of his or her imminent death. I see no need to reach that question in the context of the facial challenges to the New York and Washington laws at issue here. See ibid. (“The Washington statute at issue in this case prohibits ‘aid[ing] another person to attempt suicide,’. . . and, thus, the question before us is whether the ‘liberty’ specially protected by the Due Process Clause includes a right to commit suicide which itself includes a right to assistance in doing so”). The parties and amici agree that in these States a patient who is
Every one of us at some point may be affected by our own or a family member’s terminal illness. There is no reason to think the democratic process will not strike the proper balance between the interests of terminally ill, mentally competent individuals who would seek to end their suffering and the State’s interests in protecting those who might seek to end life mistakenly or under pressure. As the Court recognizes, States are presently undertaking extensive and serious evaluation of physician-assisted suicide and other related issues. Ante, at 716-718; see post, at 785-788 (Souter, J., concurring in judgment). In such circumstances, “the . . . challenging task of crafting appropriate procedures for safeguarding... liberty interests is entrusted to the ‘laboratory’ of the States ... in the first instance.” Cruzan v. Director, Mo. Dept. of Health,
In sum, there is no need to address the question whether suffering patients have a constitutionally cognizable interest in obtaining relief from the suffering that they may experience in the last days of their lives. There is no dispute that
Justice Ginsburg concurs in the Court’s judgments substantially for the reasons stated in this opinion. Justice Breyer joins this opinion except insofar as it joins the opinions of the Court.
[This opinion applies also to No. 95-1858, Vacco et al. v. Quill et al., post, p. 793.]
Concurrence Opinion
concurring in the judgments.
The Court ends its opinion with the important observation that our holding today is fully consistent with a continuation of the vigorous debate about the “morality, legality, and practicality of physician-assisted suicide” in a democratic society. Ante, at 735. I write separately to make it clear that there is also room for further debate about the limits that the Constitution places on the power of the States to punish the practice.
I
The morality, legality, and practicality of capital punishment have been the subject of debate for many years. In 1976, this Court upheld the constitutionality of the practice in cases coming to us from Georgia,
Today, the Court decides that Washington’s statute prohibiting assisted suicide is not invalid “on its face,” that is to say, in all or most cases in which it might be applied.
As originally filed, Washington v. Glucksberg presented a challenge to the Washington statute on its face and as it applied to three terminally ill, mentally competent patients and to four physicians who treat terminally ill patients. After the District Court issued its opinion holding that the statute placed an undue burden on the right to commit physician-assisted suicide, see Compassion in Dying v. Washington,
The appropriate standard to be applied in eases making facial challenges to state statutes has been the subject of debate within this Court. See Janklow v. Planned Parenthood, Sioux Falls Clinic,
• History and tradition provide ample support for refusing to recognize an open-ended constitutional right to commit suicide. Much more than the State’s paternalistic interest
But just as our conclusion that capital punishment is not always unconstitutional did not preclude later decisions holding that it is sometimes impermissibly cruel, so is it equally clear that a decision upholding a general statutory prohibition of assisted suicide does not mean that every possible application of the statute would be valid. A State, like Washington, that has authorized the death penalty, and thereby has concluded that the sanctity of human life does not require that it always be preserved, must acknowledge that there are situations in which an interest in hastening
II
In Cruzan v. Director, Mo. Dept. of Health,
Cruzan, however, was not the normal case. • Given the irreversible nature of her illness and the progressive character of her suffering,
Thus, the common-law right to protection from battery, which included the right to refuse medical treatment in most circumstances, did not mark “the outer limits of the substantive sphere of liberty” that supported the Cruzan family’s decision to hasten Nancy’s death. Planned Parenthood of Southeastern Pa. v. Casey,
“the individual’s right to make certain unusually important decisions that will affect his own, or his family’s, destiny. The Court has referred to such decisions as implicating ‘basic values,’ as being ‘fundamental,’ and as being dignified by history and tradition. The character of the Court’s language in these cases brings to mind the origins of the American heritage of freedom — the*745 abiding interest in individual liberty that makes certain state intrusions on the citizen’s right to decide how he will live his own life intolerable.” Fitzgerald v. Porter Memorial Hospital,523 F. 2d 716 , 719-720 (CA7 1975) (footnotes omitted), cert. denied,425 U. S. 916 (1976).
The Cruzan case demonstrated that some state intrusions on the right to decide how death will be encountered are also intolerable. The now-deceased plaintiffs in this action may in fact have had a liberty interest even stronger than Nancy Cruzan’s because, not only were they terminally ill, they were suffering constant and severe pain. Avoiding intolerable pain and the indignity of living one’s final days incapacitated and in agony is certainly “[a]t the heart of [the] liberty ... to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.” Casey,
While I agree with the Court that Cruzan does not decide the issue presented by these cases, Cruzan did give recognition, not just to vague, unbridled notions of autonomy, but to the more specific interest in making decisions about how to confront an imminent death. Although there is no absolute right to physician-assisted suicide, Cruzan makes it clear that some individuals who no longer have the option of deciding whether to live or to die because they are already on the threshold of death have a constitutionally protected interest that may outweigh the State’s interest in preserving life at all costs. The liberty interest at stake in a case like this differs from, and is stronger than, both the common-law right to refuse medical treatment and the unbridled interest in deciding whether to live or die. It is an interest in deciding how, rather than whether, a critical threshold shall be crossed.
Ill
The state interests supporting a general rule banning the practice of physician-assisted suicide do not have the same
Many terminally ill people find their lives meaningful even if filled with pain or dependence on others. Some find value in living through suffering; some have an abiding desire to witness particular events in their families’ lives; many believe it a sin to hasten death. Individuals of different religious faiths make different judgments and choices about whether to live on under such circumstances. There are those who will want to continue aggressive treatment; those who would prefer terminal sedation; and those who will seek withdrawal from life-support systems and death by gradual starvation and dehydration. Although as a general matter the State’s interest in the contributions each person may make to society outweighs the person’s interest in ending her life, this interest does not have the same force for a terminally ill patient faced not with the choice of whether to live, only of how to die. Allowing the individual, rather than the State, to make judgments “ ‘about the “quality” of life that a particular individual may enjoy,’ ” ante, at 729 (quoting Cruzan,
Similarly, the State’s legitimate interests in preventing suicide, protecting the vulnerable from coercion and abuse, and preventing euthanasia are less significant in this context. I agree that the State has a compelling interest in preventing persons from committing suicide because of depression or coercion by third parties. But the State’s legitimate interest in preventing abuse .does not apply to an individual who is not victimized by abuse, who is not suffering from depression, and who makes a rational and voluntary decision to seek assistance in dying. Although, as the New York Task Force report discusses, diagnosing depression and other mental illness is not always easy, mental health workers and other professionals expert in working with dying patients can help patients cope with depression and pain, and help patients assess their options. See Brief for Washington State Psychological Association et al. as Amici Curiae 8-10.
Relatedly, the State and amici express the concern that patients whose physical pain is inadequately treated will be more likely to request assisted suicide. Encouraging the development and ensuring the availability of adequate pain treatment is of utmost importance; palliative care, however, cannot alleviate all pain and suffering. See Orentlicher, Legalization of Physician Assisted Suicide: A Very Modest Revolution, 38 Boston College L. Rev. (Galley, p. 8) (1997) (“Greater use of palliative care would reduce the demand for
The final major interest asserted by the State is its interest in preserving the traditional integrity of the medical profession. The fear is that a rule permitting physicians to assist in suicide is inconsistent with the perception that they serve their patients solely as healers. But for some patients, it would be a physician’s refusal to dispense medication to ease their suffering and make their death tolerable and dignified that would be inconsistent with the healing role. See Block & Billings, Patient Request to Hasten Death, 154 Archives Internal Med. 2039, 2045 (1994) (A doctor’s refusal to hasten death “may be experienced by the [dying] patient as an abandonment, a rejection, or an expression of inappropriate paternalistic authority”). For doctors who have longstanding relationships with their patients, who have given their patients advice on alternative treatments, who are attentive to their patient’s individualized needs, and who are knowledgeable about pain symptom management and palliative care options, see Quill, Death and Dignity, A Case of Individualized Decision Making, 324 New England J. Med. 691-694 (1991), heeding a patient’s desire to assist in her suicide would not serve to harm the physician-patient relationship. Furthermore, because physicians are already involved in making decisions that hasten the death of terminally ill patients — through termination of life support, withholding of medical treatment, and terminal sedation — there is in fact significant tension between the traditional view of
As the New York State Task Force on Life and the Law recognized, a State’s prohibition of assisted suicide is justified by the fact that the “‘ideal’” case in which “patients would be screened for depression and offered treatment, effective pain medication would be available, and all patients would have a supportive committed family and doctor” is not the usual case. New York State Task Force on Life and the Law, When Death Is Sought: Assisted Suicide and Euthanasia in the Medical Context 120 (May 1994). Although, as the Court concludes today, these potential harms are sufficient to support the State’s general public policy against assisted suicide, they will not always outweigh the individual liberty
>
In New York, a doctor must respect a competent person s decision to refuse or to discontinue medical treatment even though death will thereby ensue, but the same doctor would be guilty of a felony if she provided her patient assistance in committing suicide.
There may be little distinction between the intent of a terminally ill patient who decides to remove her life support and one who seeks the assistance of a doctor in ending her life; in both situations, the patient is seeking to hasten a certain, impending death. The doctor’s intent might also be the same in prescribing lethal medication as it is in terminat
Thus, although the differences the majority notes in causation and intent between terminating life support and assisting in suicide support the Court’s rejection of the respondents’ facial challenge, these distinctions may be inapplicable to particular terminally ill patients and their doctors. Our holding today in Vacco v. Quill, post, p. 793, that the Equal Protection Clause is not violated by New York’s classification, just like our holding in Washington v. Glucksberg that the. Washington statute is not invalid on its face, does not foreclose the possibility that some applications of the New
There remains room for vigorous debate about the outcome of particular cases that are not necessarily resolved by the opinions announced today. How such cases may be decided will depend on their specific facts. In my judgment, however, it is clear that the so-called “unqualified interest in the preservation of human life,” Cruzan,
? opinion applies also to No. 95-1858, Vacco et al. v. Quill et al., post, p. 793.]
Gregg v. Georgia,
Proffitt v. Florida,
Jurek v. Texas,
See, e. g., Godfrey v. Georgia,
See ante, at 709, n. 6.
If the Court had actually applied the Salerno standard in this action, it would have taken only a few paragraphs to identify situations in which the Washington statute could be validly enforced. In Salerno itself, the Court would have needed only to look at whether the statute could be constitutionally applied to the arrestees before it; any further analysis would have been superfluous. See Dorf, Facial Challenges to State and Federal Statutes, 46 Stan. L. Rev. 235, 239-240 (1994) (arguing that if the Salerno standard were taken literally, a litigant could not succeed in her facial challenge unless she also succeeded in her as applied challenge).
In other eases and in other contexts, we have imposed a significantly lesser burden on the challenger. The most lenient standard that we have applied requires the challenger to establish that the invalid applications of a statute “must not only be real, but substantial as well, judged in relation to the statute’s plainly legitimate sweep.” Broadrick v. Oklahoma,
“Who casts not up his eye to the sun when it rises? but who takes off his eye from a comet when that breaks out? Who bends not his ear to any bell which upon any occasion rings? but who can remove it from that bell which is passing a piece of himself out of this world? No man is an island, entire of itself; every man is a piece of the continent, a part of the main. If a clod be washed away by the sea, Europe is the less, as well as if a promontory were, as well as if a manor of thy friend’s or of thine own were; any man’s death diminishes me, because I am involved in mankind; and therefore never send to know for whom the bell tolls; it tolls for thee.” J. Donne, Meditation No. 17, Devotions Upon Emergent Occasions (1623) (http://www.kfu.com/~pL.omJhejDell_tolls.html).
See
“[NJeither the Bill of Rights nor the laws of sovereign States create the liberty which the Due Process Clause protects. The relevant constitutional provisions are limitations on the power of the sovereign to infringe on the liberty of the citizen. The relevant state laws either create property rights, or they curtail the freedom of the citizen who must live in ah ordered society. Of course, law is essential to the exercise and enjoyment of individual liberty in a complex society. But it is not the source of liberty, and surely not the exclusive source.
“I had thought it self-evident that all men were endowed by their Creator with liberty as one of the cardinal unalienable rights. It is that basic freedom which the Due Process Clause protects, rather than the particular rights or privileges conferred by specific laws or regulations.” Meachum v. Fano,
“Nancy Cruzan’s interest in life, no less than that of any other person, includes an interest in how she will be thought of after her death by those whose opinions mattered to her. There can be no doubt that her life made her dear to her family and to others. How she dies will affect how that
“Each of us has an interest in the kind of memories that will survive after death. To that end, individual decisions are often motivated by their impact on others. A member of the kind of family identified in the trial court’s findings in this case would likely have not only a normal interest in minimizing the burden that her own illness imposes on others, but also an interest in having their memories of her filled predominantly with thoughts about her past vitality rather than her current condition.” Id., at 356.
1 note that there is evidence that a significant number of physicians support the practice of hastening death in particular situations. A survey published in the New England Journal of Medicine found that 56% of responding doctors in Michigan preferred legalizing assisted suicide to an explicit ban. Bachman et al., Attitudes of Michigan Physicians and the Public Toward Legalizing Physician-Assisted Suieide and Voluntary Euthanasia, 334 New England J. Med. 303-309 (1996). In a survey of Oregon doctors, 60% of the responding doctors supported legalizing assisted suicide for terminally ill patients. See Lee et al., Legalizing Assisted Suicide — Views of Physicians in Oregon, 335 New England J. Med. 310-315 (1996). Another study showed that 12% of physicians polled in Washington State reported that they had been asked by their terminally ill patients for prescriptions to hasten death, and that, in the year prior to the study, 24% of those physicians had complied with such requests. See Back, Wallace, Starks, & Perlman, Physician-Assisted Suicide and Euthanasia in Washington State, 275 JAMA 919-925 (1996); see also Doukas, Waterhouse, Gorenflo, & Seld, Attitudes and Behaviors on Physician-Assisted Death: A Study of Michigan Oncologists, 13 J. Clinical Oncology 1055 (1995) (reporting that 18% of responding Michigan oncologists reported active participation in assisted suicide); Slome, Moulton, Huffine, Gorter, & Abrams, Physicians’ Attitudes Toward Assisted Suicide in AIDS, 5 J. Acquired Immune Deficiency Syndromes 712 (1992) (reporting that 24% of responding physicians who treat AIDS patients would likely grant a patient’s request for assistance in hastening death).
See Vacco v. Quill, post, at 797, nn. 1 and 2.
The American Medical Association recognized this distinction when it supported Nancy Cruzan and continues to recognize this distinction in its support of the States in these cases.
If a doctor prescribes lethal drugs to be self-administered by the patient, it is not at all clear that the physician’s intent is that the patient “be made dead,” post, at 802 (internal quotation marks omitted). Many patients prescribed lethal medications never actually take them; they merely acquire some sense of control in the process of dying that the availability of those medications provides. See Back, supra n. 12, at 922; see also Quill, 324 New England J. Med., at 693 (describing how some patients fear death less when they feel they have the option of physician-assisted suicide).
Concurrence Opinion
concurring in the judgment.
Three terminally ill individuals and four physicians who sometimes treat terminally ill patients brought this challenge to the Washington statute making it a crime “knowingly ... [to] ai[d] another person to attempt suicide,” Wash. Rev. Code § 9A.36.060 (1994), claiming on behalf of both patients and physicians that it would violate substantive due process to enforce the statute against a doctor who acceded to a dying patient’s request for a drug to be taken by the patient to commit suicide. The question is whether the statute sets up one of those “arbitrary impositions” or “purposeless restraints” at odds with the Due Process Clause of the Fourteenth Amendment. Poe v. Ullman,
I
Although the terminally ill original parties have died during the pendency of this case, the four physicians who remain
In response, the State argues that the interest asserted by the doctors is beyond constitutional recognition because it has no deep roots in our history and traditions. Brief for Petitioners 21-25. But even aside from that, without disputing that the patients here were competent and terminally ill, the State insists that recognizing the legitimacy of doctors’ assistance of their patients as contemplated here would entail a number of adverse consequences that the Washington Legislature was entitled to forestall. The nub of this part of the State’s argument is not that such patients are constitutionally undeserving of relief on their own account, but that any attempt to confine a right of physician assistance to the circumstances presented by these doctors is likely to fail. Id., at 34-35, 44-47.
First, the State argues that the right could not be confined to the terminally ill. Even assuming a fixed definition of that term, the State observes that it is not always possible to say with certainty how long a person may live. Id., at 34. It asserts that “[tjhere'is no principled basis on which [the right] can be limited to the prescription of medication for terminally ill patients to administer to themselves” when the right’s justifying principle is as broad as “ ‘merciful termina
II
When the physicians claim that the Washington law deprives them of a right falling within the scope of liberty that the Fourteenth Amendment guarantees against denial without due process' of law,
Before the ratification of the Fourteenth Amendment, substantive constitutional review resting on a theory of unenu-merated rights occurred largely in the state courts applying state constitutions that commonly contained either due process clauses like that of the Fifth Amendment (and later the Fourteenth) or the textual antecedents of such clauses, re
Thus, a Connecticut court approved a statute legitimating a class of previous illegitimate marriages, as falling within the terms of the “social compact,” while making clear its power to review constitutionality in those terms. Goshen v. Stonington,
Even in this early period, however, this Court anticipated the developments that would presage both the Civil War and the ratification of the Fourteenth Amendment, by making it clear on several occasions that it too had no doubt of the
Fletcher was not, though, the most telling early example of such review. For its most salient instance in this Court before the adoption of the Fourteenth Amendment was, of course, the case that the Amendment would in due course overturn, Dred Scott v. Sandford,
After the ratification of the Fourteenth Amendment, with its guarantee of due process protection against the States, interpretation of the words “liberty” and “property” as used in Due Process Clauses became a sustained enterprise, with the Court generally describing the due process criterion in converse terms of reasonableness or arbitrariness. That standard is fairly traceable to Justice Bradley’s dissent in the Slaughter-House Cases,
The theory became serious, however, beginning with Allgeyer v. Louisiana,
Although this principle was unobjectionable, what followed for a season was, in the realm of economic legislation, the echo of Dred Scott. Allgeyer was succeeded within a decade by Lochner v. New York,
Even before the deviant economic due process cases had been repudiated, however, the more durable precursors of modern substantive due process were reaffirming this Court’s obligation to conduct arbitrariness review, beginning with Meyer v. Nebraska,
After Meyer and Pierce, two further opinions took the major steps that lead to the modern law. The first was not even in a due process case but one about equal protection, Skinner v. Oklahoma ex rel. Williamson,
The second major opinion leading to the modern doctrine was Justice Harlan’s Poe dissent just cited, the conclusion of which was adopted in Griswold v. Connecticut,
Following the first point of the Poe dissent, on the necessity to engage in the sort of examination we conduct today, the dissent’s second and third implicitly address those cases, already noted, that are now condemned with virtual unanimity as disastrous mistakes of substantive due process review. The second of the dissent’s lessons is a reminder that the business of such review is not the identification of extratex-tual absolutes but scrutiny of a legislative resolution (perhaps unconscious) of clashing principles, each quite possibly worthy in and of itself, but each to be weighed within the history of our values as a people. It is a comparison of the relative strengths of opposing claims that informs the judicial task, not a deduction from some first premise. Thus informed, judicial review still has no warrant to substitute one reasonable resolution of the contending positions for another, but authority to supplant the balance already struck between the contenders only when it falls outside the realm of the reasonable. Part III, below, deals with this second point, and also with the dissent’s third, which takes the form of an
I — l ► — l HH
My understanding of unenumerated rights in the wake of the Poe dissent and subsequent cases avoids the absolutist failing of many older cases without embracing the opposite pole of equating reasonableness with past practice described at a very specific level. See Planned Parenthood of Southeastern Pa. v. Casey,
“Due Process has not been reduced to any formula; its content cannot be determined by reference to any code. The best that can be said is that through the course of this Court’s decisions it has represented the balance which our Nation, built upon postulates of respect for the liberty of the individual, has struck between that liberty and the demands of organized society. If the supplying of content to this Constitutional concept has of necessity been a rational process, it certainly has not been one where judges have felt free to roam where unguided speculation might take them. The balance of which I speak is the balance struck by this country, having regard to what history teaches are the traditions from which it developed as well as the traditions from which it broke. That tradition is a living thing. A decision of this Court which radically departs from it could not long survive, while a decision which builds on what has survived is likely to be sound. No formula could*766 serve as a substitute, in this area, for judgment and restraint.” Id., at 542.
See also Moore v. East Cleveland,
After the Poe dissent, as before it, this enforceable concept of liberty would bar statutory impositions even at relatively trivial levels when governmental restraints are undeniably irrational as unsupported by any imaginable rationale. See, e. g., United States v. Carotene Products Co.,
This approach calls for a court to assess the relative “weights” or dignities of the contending interests, and to this extent the judicial method is familiar to the common law. Common-law method is subject, however, to two important constraints in the hands of a court engaged in substantive due process review. First, such a court is bound to confine the values that it recognizes to those truly deserving constitutional stature, either to those expressed in constitutional text, or those exemplified by “the traditions from which [the Nation] developed,” or revealed by contrast with “the traditions from which it broke.” Poe,
The second constraint, again, simply reflects the fact that constitutional review, not judicial lawmaking, is a court’s business here. The weighing or valuing of contending interests in this sphere is only the first step, forming the basis for determining whether the statute in question falls inside or outside the zone of what is reasonable in the way it resolves the conflict between the interests of state and individual. See, e.g., Poe, supra, at 553 (Harlan, J., dissenting); Youngberg v. Romeo,
Although the Poe dissent disclaims the possibility of any general formula for due process analysis (beyond the basic analytic structure just described), see id,., at 542, 544, Justice Harlan of course assumed that adjudication under the Due Process Clauses is like any other instance of judgment dependent on common-law method, being more or less persuasive according to the usual canons of critical discourse. See also Casey,
Just as results in substantive due process cases are tied to the selections of statements of the competing interests, the acceptability of the results is a function of the good reasons for the selections made. It is here that the value of common-law method becomes apparent, for the usual thinking of the common law is suspicious of the all-or-nothing analysis that tends to produce legal petrification instead of an evolving boundary between the domains of old principles. Common-law method tends to pay respect instead to detail, seeking to understand old principles afresh by new examples and new counterexamples. The “tradition is a living thing,” Poe,
So, in Poe, Justice Harlan viewed it as essential to the plaintiffs’ claimed right to use contraceptives that they sought to do so within the privacy of the marital bedroom. This detail in fact served two crucial and complementary
The same insistence on exactitude lies behind questions, in current terminology, about the proper level of generality at which to analyze claims and counterclaims, and the demand for fitness and proper tailoring of a restrictive statute is just another way of testing the legitimacy of the generality at which the government sets up its justification.
IV
A
Respondents claim that a patient facing imminent death, who anticipates physical suffering and indignity, and is capable of responsible and voluntary choice, should have a right to a physician’s assistance in providing counsel and drugs to be administered by the patient to end life promptly. Complaint ¶ 3.1. They accordingly claim that a physician must have the corresponding right to provide such aid, contrary to the provisions of Wash. Rev. Code § 9A.36.060 (1994). I do not understand the argument to rest on any assumption that rights either to suicide or to assistance in committing it are historically based as such. Respondents, rather, acknowledge the prohibition of each historically, but rely on the fact that to a substantial extent the State has repudiated that history. The result of this, respondents say, is to open
1
The dominant western legal codes long condemned suicide and treated either its attempt or successful accomplishment as a crime, the one subjecting the individual to penalties, the other penalizing his survivors by designating the suicide’s property as forfeited to the government. See 4 W. Blackstone, Commentaries *188-* 189 (commenting that English law considered suicide to be “ranked . . . among the highest crimes” and deemed persuading another to commit suicide to be murder); see generally Marzen, O’Dowd, Crone, & Balch, Suicide: A Constitutional Right?, 24 Duquesne L. Rev. 1, 56-63 (1985). While suicide itself has generally not been considered a punishable crime in the United States, largely because the common-law punishment of forfeiture was rejected as improperly penalizing an innocent family, see id., at 98-99, most States have consistently punished the act of assisting a suicide as either a common-law or statutory crime and some continue to view suicide as an unpunishable crime. See generally id., at 67-100, 148-242.
The principal significance of this history in the State of Washington, according to respondents, lies in its repudiation
This liberty interest in bodily integrity was phrased in a general way by then-judge Cardozo when he said, “[e]very human being of adult years and sound mind has a right to determine what shall be done with his own body” in relation to his medical needs. Schloendorff v. Society of New York Hospital,
It is, indeed, in the abortion cases that the most telling recognitions of the importance of bodily integrity and the concomitant tradition of medical assistance have occurred. In Roe v. Wade, the plaintiff contended that the Texas statute making it criminal for any person to “procure an abortion,” id., at 117, for a pregnant woman was unconstitutional insofar as it prevented her from “terminat[ing] her pregnancy by an abortion ‘performed by a competent, licensed physician, under safe, clinical conditions,’ ” id., at 120, and in striking down the statute we stressed the importance of the relationship between patient and physician, see id., at 153, 156.
The analogies between the abortion cases and this one are several. Even though the State has a legitimate interest in discouraging abortion, see Casey, supra, at 871 (joint opinion of O’Connor, Kennedy, and Souter, JJ.); Roe,
The argument supporting respondents’ position thus progresses through three steps of increasing forcefulness. First, it emphasizes the decriminalization of suicide. Reliance on this fact is sanctioned under the standard that looks not only to the tradition retained, but to society’s occasional choices to reject traditions of the legal past. See Poe v. Ullman,
B
The State has put forward several interests to justify the Washington law as applied to physicians treating terminally ill patients, even those competent to make responsible choices: protecting life generally, Brief for Petitioners 33, discouraging suicide even if knowing and voluntary, id., at 37-38, and protecting terminally ill patients from involuntary suicide and euthanasia, both voluntary and nonvoluntary, id., at 34-35.
It is not necessary to discuss the exact strengths of the first two claims of justification in the present circumstances, for the third is dispositive for me. That third justification is different from the first two, for it addresses specific features of respondents’ claim, and it opposes that claim not with a moral judgment contrary to respondents’, but with a recognized state interest in the protection of nonresponsible individuals and those who do not stand in relation either to death or to their physicians as do the patients whom respondents describe. The State claims interests in protecting patients from mistakenly and involuntarily deciding to end their lives, and in guarding against both voluntary and involuntary euthanasia. Leaving aside any difficulties in coming to a clear concept of imminent death, mistaken decisions may result from inadequate palliative care or a terminal prognosis that turns out to be error; coercion and abuse may stem from the large medical bills that family members cannot bear
The mere assertion that the terminally sick might be pressured into suicide decisions by close friends and family members would not alone be very telling. Of course that is possible, not only because the costs of care might be more than family members could bear but simply because they might naturally wish to see an end of suffering for someone they love. But one of the points of restricting any right of assistance to physicians would be to condition the right on an exercise of judgment by someone qualified to assess the patient’s responsible capacity and detect the influence of those outside the medical relationship.
The State, however, goes further, to argue that dependence on the vigilance of physicians will not be enough. First, the lines proposed here (particularly the requirement of a knowing and voluntary decision by the patient) would be more difficult to draw than the lines that have limited
Respondents propose an answer to all this, the answer of state regulation with teeth. Legislation proposed in several States, for example, would authorize physician-assisted suicide but require two qualified physicians to confirm the patient’s diagnosis, prognosis, and competence; and would mandate that the patient make repeated requests witnessed by at least two others over a specified timespan; and would impose reporting requirements and criminal penalties for various acts of coercion. See App. to Brief for State Legislators as Amici Curiae 1a-2a.
But at least at this moment there are reasons for caution in predicting the effectiveness of the teeth proposed. Respondents’ proposals, as it turns out, sound much like the guidelines now in place in the Netherlands, the only place where experience with physician-assisted suicide and euthanasia has yielded empirical evidence about how such regulations might affect actual practice. Dutch physicians must engage in consultation before proceeding, and must decide whether the patient’s decision is voluntary, well considered, and stable, whether the request to die is enduring and made more than once, and whether the patient’s future will involve
I take it that the basic concept of judicial review with its possible displacement of legislative judgment bars any finding that a legislature has acted arbitrarily when the following conditions are met: there is a serious factual controversy over the feasibility of recognizing the claimed right without at the same time making it impossible for the State to engage in an undoubtedly legitimate exercise of power; facts
The capacity of the State to protect the others if respondents were to prevail is, however, subject to some genuine question, underscored by the responsible disagreement over the basic facts of the Dutch experience. This factual controversy is not open to a judicial resolution with any substantial degree of assurance at this time. It is not, of course, that any controversy about the factual predicate of a due process claim disqualifies a court from resolving it. Courts can recognize captiousness, and most factual issues can be settled in a trial court. At this point, however, the factual issue at the heart of this case does not appear to be one of those. The principal enquiry at the moment is into the Dutch experience, and I question whether an independent front-line investigation into the facts of a foreign country’s legal administration can be soundly undertaken through American courtroom litigation. While an extensive literature on any subject can raise the hopes for judicial understanding, the literature on this subject is only nascent. Since there is little experience directly bearing on the issue, the most that can be said is that whichever way the Court might rule today, events could overtake- its assumptions, as experimentation in some jurisdictions confirmed or discredited the concerns about progression from assisted suicide to euthanasia.
I do not decide here what the significance might be of legislative foot dragging in ascertaining the facts going to the State’s argument that the right in question could not be confined as claimed. Sometimes a court may be bound to act regardless of the institutional preferability of the political branches as forums for addressing constitutional claims. See, e. g., Bolling v. Sharpe,
One must bear in mind that the nature of the right claimed, if recognized as one constitutionally required, would differ in no essential way from other constitutional rights guaranteed by enumeration or derived from some more definite textual source than “due process.” An unenumer-ated right should not therefore be recognized, with the effect
Legislatures, however, are not so constrained. The experimentation that should be out of the question in constitutional adjudication displacing legislative judgments is entirely proper, as well as highly desirable, when the legislative power addresses an emerging issue like assisted suicide. The Court should accordingly stay its hand to allow reasonable legislative consideration. While I do not decide for all time that respondents’ claim should not be recognized, I acknowledge the legislative institutional competence as the better one to deal with that claim at this time.
A nonprofit corporation known as Compassion in Dying was also a plaintiff and appellee below but is not a party in this Court.
As I will indicate in some detail below, I see the challenge to the statute not as facial but as-applied, and I understand it to be in narrower terms than those accepted by the Court.
The doctors also rely on the Equal Protection Clause, but that source of law does essentially nothing in a case like this that the Due Process Clause cannot do on its own.
The status of the Harlan dissent in Poe v. Ullman,
Coke indicates that prohibitions against deprivations without “due process of law” originated in an English statute that “rendred” Magna Carta’s “law of the land” in such terms. See 2 E. Coke, Institutes 50 (1797); see also E. Corwin, Liberty Against Government 90-91 (1948).
The Slaughter-House Cases are important, of course, for their holding that the Privileges and Immunities Clause was no source of any but a specific handful of substantive rights.
Judge Johnson of the New York Court of Appeals had made the point more obliquely a century earlier when he wrote that “the form of this declaration of right, ‘no person shall be deprived of life, liberty or property, without due process of law,’ necessarily imports that the legislature cannot make the mere existence of the rights secured the occasion of depriving a person of any of them, even by the forms which belong to ‘due process of law.’ For if it does not necessarily import this, then the legislative power is absolute.” And, “[t]o provide for a trial to ascertain whether a man is in the enjoyment of [any] of these rights, and then, as a consequence of finding that he is in the enjoyment of it, to deprive him of it, is doing indirectly just what is forbidden to be done directly, and reduces the constitutional provision to a nullity.” Wynehamer v. People,
We have made it plain, of course, that not every law that incidentally makes it somewhat harder to exercise a fundamental liberty must be justified by a compelling counterinterest. See Casey,
Justice Harlan thus recognized just what the Court today assumes, that by insisting on a threshold requirement that the interest (or, as the Court puts it, the right) be fundamental before anything more than rational basis justification is required, the Court ensures that not every ease will require the “complex balancing” that heightened scrutiny entails. See ante, at 722.
Our cases have used various terms to refer to fundamental liberty interests, see, e. g., Poe,
Thus, as the Poe dissent illustrates, the task of determining whether the concrete right claimed by an individual in a particular case falls within the ambit of a more generalized protected liberty requires explicit analysis when what the individual wants to do could arguably be characterized as belonging to different strands of our legal tradition requiring different degrees of constitutional scrutiny. See also Tribe & Dorf, Levels of Generality in the Definition of Rights, 57 U. Chi. L. Rev. 1057, 1091 (1990) (abortion might conceivably be assimilated either to the tradition regarding women’s reproductive freedom in general, which places a substantial burden of justification on the State, or to the tradition regarding protection of fetuses, as embodied in laws criminalizing feticide by someone other than the mother, which generally requires only rationality on the part of the State). Selecting among such competing characterizations demands reasoned judgment about which broader principle, as exemplified in the concrete privileges and prohibitions embodied in our legal tradition, best fits the particular claim asserted in a particular case.
The dual dimensions of the strength and the fitness of the government’s interest are succinctly captured in the so-called “compelling interest test,” under which regulations that substantially burden a constitutionally protected (or “fundamental”) liberty may be sustained only if “narrowly tailored to serve a compelling state interest,” Reno v. Flores,
Washington and New York are among the minority of States to have criminalized attempted suicide, though neither State still does so. See Brief for Members of the New York and Washington State Legislatures as Amicus Curiae 15, n. 8 (listing state statutes). The common law governed New York as a Colony and the New York Constitution of 1777 recognized the common law, N. Y. Const. of 1777, Art. XXXV, and the state legislature recognized common-law crimes by statute in 1788. See Act of
Washington’s first territorial legislature designated assisting another “in the commission of self-murder” to be manslaughter, see Act of Apr. 28, 1854, § 17, 1854 Wash. Laws 78, and reenacted the provision in 1869 and 1873, see Act of Dec. 2, 1869, § 17, 1869 Wash. Laws 201; Act of Nov. 10, 1873, § 19, 1873 Wash. Laws 184 (codified at Wash. Code § 794 (1881)). In 1909, the state legislature enacted a law based on the 1881 New York law and a similar one enacted in Minnesota, see Marzen, O’Dowd, Crone, & Balch, 24 Duquesne L. Rev., at 206, making attempted suicide a crime punishable by two years in prison or a fine, and retaining the criminal prohibition against assisting suicide, designating it manslaughter. See Criminal Code, ch. 249, §§ 133-137, 1909 Wash. Laws, 11th Sess., 890, 929 (codified at Remington & Ballinger’s Wash. Code §§ 2385-2389
Numerous States have enacted statutes prohibiting assisting a suicide. See, e. g., Alaska Stat. Ann. § 11.41.120(a)(2) (1996); Ariz. Rev. Stat. Ann. § 13-1103(A)(3) (Supp. 1996-1997); Ark. Code Ann. § 5-10~104(a)(2) (1993); Cal. Penal Code Ann. § 401 (West 1988); Colo. Rev. Stat. § 18-3-104(1)(b) (Supp. 1996); Conn. Gen. Stat. § 53a-56(a)(2) (1997); Del. Code Ann., Tit. 11, § 645 (1995); Fla. Stat. § 782.08 (1991); Ga. Code Ann. § 16-5-5(b) (1996); Haw. Rev. Stat. § 707-702(1)(b) (1993); Ill. Comp. Stat., ch. 720, §5/12-31 (1993); Ind. Code §§ 35-42-1-2 to 35-42-1-2.5 (1994 and Supp. 1996); Iowa Code Ann. § 707A.2 (West Supp. 1997); Kan. Stat. Ann. § 21-3406 (1995); Ky. Rev. Stat. Ann. § 216.302 (Miehie 1994); La. Rev. Stat. Ann. § 14:32.12 (West Supp. 1997); Me. Rev. Stat. Ann., Tit. 17-A, § 204 (1983); Mich. Comp. Laws Ann. § 752.1027 (West Supp. 1997-1998); Minn. Stat. § 609.215 (1996); Miss. Code Ann. § 97-3-49 (1994); Mo. Rev. Stat. § 565.023.1(2) (1994); Mont. Code Ann. § 45-5-105 (1995); Neb. Rev. Stat. § 28-307 (1995); N. H. Rev. Stat. Ann. § 630:4 (1996); N. J. Stat. Ann. § 2C:11-6 (West 1995); N. M. Stat. Ann. § 30-2-4 (1996); N. Y. Penal Law § 120.30 (McKinney 1987); N. D. Cent. Code § 12.1-16-04 (Supp. 1995); Okla. Stat., Tit. 21, §§ 813-815 (1983); Ore. Rev. Stat. § 163.125(1)(b) (1991); Pa. Stat. Ann., Tit. 18, § 2505 (Purdon 1983); R. I. Gen. Laws §§ 11-60-1 through 11-60-5 (Supp. 1996); S. D. Codified Laws § 22-16-37 (1988); Tenn. Code Ann. § 39-13-216 (Supp. 1996); Tex. Penal Code Ann. § 22.08 (1994); Wash. Rev. Code § 9A.36.060 (1994); Wis. Stat. § 940.12 (1993-1994). See also P. R. Laws Ann., Tit. 33, § 4009 (1984).
Other States have enacted similar provisions, some categorically authorizing such pain treatment, see, e. g., Ind. Code § 35—42—1—2.5(a)(1) (Supp. 1996) (ban on assisted suicide does not apply to licensed health-care provider who administers or dispenses medications or procedures to relieve pain or discomfort, even if such medications or procedures hasten death, unless provider intends to cause death); Iowa Code Aim. § 707A.3.1 (West Supp. 1997) (same); Ky. Rev. Stat. Ann. § 216.304 (Michie 1997) (same); Minn. Stat. Ann. § 609.215(3) (West Supp. 1997) (same); Ohio Rev. Code Ann. §§ 2133.11(A)(6), 2133.12(E)(1) (1994); R. I. Gen. Laws § 11-60-4 (Supp. 1996) (same); S. D. Codified Laws § 22-16-37.1 (Supp. 1997); see Mich. Comp. Laws Ann. § 752.1027(3) (West Supp. 1997); Tenn. Code Ann. § 39—13—216(b)(2) (1996); others permit patients to sign health-care directives in which they authorize pain treatment even if it hastens death. See, e.g., Me. Rev. Stat. Ann., Tit. 18-A, §§ 5-804, 5-809 (1996); N. M. Stat. Ann. §§ 24-7A-4, 24-7A-9 (Supp. 1995); S. C. Code Ann. §62-5-504 (Supp. 1996); Va. Code Ann. §§ 54.1-2984, 4.1-2988 (1994).
While it is also more difficult to assess in cases involving limitations on life incidental to pain medication and the disconnection of artificial life support, there are reasons to justify a lesser concern with the punctilio of responsibility in these instances. The purpose of requesting and giving the medication is presumably not to cause death but to relieve the pain so that the State’s interest in preserving life is not unequivocally implicated by the practice; and the importance of pain relief is so clear that there is less likelihood that relieving pain would run counter to what a responsible patient would choose, even with the consequences for life expectancy. As for ending artificial life support, the State again may see its interest in preserving life as weaker here than in the general case just because artificial life support preserves life when nature would not; and, because such life support is a frequently offensive bodily intrusion, there is a lesser reason to fear that a decision to remove it would not be the choice of one fully responsible. Where, however, a physician writes a prescription to equip a patient to end life, the prescription is written to serve an affirmative intent to die (even though the physician need not and probably does not characteristically have an intent that the patient die but only that the patient be equipped to make the decision). The patient’s responsibility and competence are therefore crucial when the physician is presented with the request.
Again, the same can be said about life support and shortening life to kill pain, but the calculus may be viewed as different in these instances, as noted just above.
Concurrence Opinion
concurring in the judgments.
I believe that Justice O’Connor’s views, which I share, have greater legal significance than the Court’s opinion suggests. I join her separate opinion, except insofar as it joins the majority. And I concur in the judgments. I shall briefly explain how I differ from the Court.
I agree with the Court in Vacco v. Quill, post, at 800-809, that the articulated state interests justify the distinction
As Justice Souter points out, ante, at 762-765 (opinion concurring in judgment), Justice Harlan’s dissenting opinion in Poe v. Ullman,
I do not believe, however, that this Court need or now should decide whether or a not such a right is “fundamental.” That is because, in my view, the avoidance of severe physical pain (connected with death) would have to constitute an essential part of any successful claim and because, as Justice O’Connor points out, the laws before us do not force a dying person to undergo that kind of pain. Ante, at 736-737 (concurring opinion). Rather, the laws of New York and of Washington do not prohibit doctors from providing patients with drugs sufficient to control pain despite the risk that those drugs themselves will kill. Cf. New York State Task Force on Life and the Law, When Death Is Sought: Assisted Suicide and Euthanasia in the Medical Context 163, n. 29 (May 1994). And under these circumstances the laws of New York and Washington would overcome any remaining significant interests and would be justified, regardless.
Medical technology, we are repeatedly told, makes the administration of pain-relieving drugs sufficient, except for a very few individuals for whom the ineffectiveness of pain control medicines can mean not pain, but the need for seda
This legal circumstance means that the state laws before us do not infringe directly upon the (assumed) central interest (what I have called the core of the interest in dying with dignity) as, by way of contrast, the state anticontraceptive laws at issue in Poe did interfere with the central interest there at stake — by bringing the State’s police powers to bear upon the marital bedroom.
Were the legal circumstances different — for example, were state law to prevent the provision of palliative care, including the administration of drugs as needed to avoid pain at the end of life — then the law’s impact upon serious and otherwise unavoidable physical pain (accompanying death) would be more directly at issue. And as Justice O’Connor suggests, the Court might have to revisit its conclusions in these cases.
[This opinion applies also to No. 95-1858, Vacco et al. v. Quill et al., post, p. 793.]
Concurrence Opinion
concurring in the judgments.
I concur in the Court’s judgments in these cases substantially for the reasons stated by Justice O’Connor in her concurring opinion, ante, p. 786.
[This opinion applies also to No. 95-1858, Vacco et al. v. Quill et al., post, p. 793.]