Nos. 95-1858, 96-110
In The
Supreme Court of the United States
October Term, 1996
DENNIS C. VACCO, et al.
Petitioners,
v.
TIMOTHY E. QUILL, M.D., et al.
Respondents.
On Petition for a Writ of Certiorari
to the United States Court of Appeals
for the Second Circuit
STATE OF WASHINGTON, at ano.,
Petitioners,
v.
HAROLD GLUCKSBERG, M.D., et al.,
Respondents.
On Petition for a Writ of Certiorari
to the United States Court of Appeals
for the Ninth Circuit
BRIEF OF AGUDATH ISRAEL OF AMERICA AS AMICUS CURIAE
IN SUPPORT OF THE PETITIONERS
ABBA COHEN
AGUDATH ISRAEL OF AMERICA
1730 Rhode Island Ave., NW
Washington, D.C. 20036
(202) 835-0414
DAVID ZWIEBEL*
MORTON M. AVIGDOR
AGUDATH ISRAEL OF AMERICA
84 William Street
New York, NY 10038
(212) 797-9000
Attorneys for Amicus Curiae
Agudath Israel of America
* Counsel of Record
TABLE OF CONTENTS
Page
TABLE OF CONTENTS i
TABLE OF AUTHORITIES ii
INTEREST OF THE AMICUS CURIAE 1
ARGUMENT . 5
I. LEGALIZING ASSISTED SUICIDE, IN ANY FORM,
COULD LEAD TO TRAGIC ABUSE 7
II. THE DECISIONS BELOW, IF AFFIRMED, ARE LIKELY TO LEAD TO A BROAD
EXPANSION OF
THE RIGHT TO ASSISTED SUICIDE AND EUTHANASIA 9
1. The Ninth Circuit's Candid Acknowledgments 10
2. Implications of the Second Circuit's Equal
Protection Analysis 15
III. ASSIGNING DIMINISHED LEGAL PROTECTION
TO A LIFE OF DIMINISHED MEDICAL QUALITY FOLLOWS
DANGEROUS HISTORICAL PRECEDENT 21
CONCLUSION 25
TABLE OF AUTHORITIES
Cases Page(s)
Bisenius v. Karns, 165 N.W. 2d 377,
appeal dismissed 365 U.S. 709 (1969) 8
Compassion in Dying v. State of Washington,
79 F.3d 790 (9th Cir. 1996) (en banc),
request for rehearing denied,
85 F.3d 1440 (9th Cir. June 12, 1996) 5, passim
Compassion in Dying v. State of Washington,
49 F.3d 585 (9th Cir. 1995) 6
Cruzan v. Director, Missouri Dept. of Health,
497 U.S. 261 (1990) 2,20,21
In re Guardianship of Grant,
747 F.2d 445 (Wash. 1987) .12
Hooper v. Bernalillo County Assessor,
472 U.S. 612 (1985) 16
Jacobson v. Massachusetts,
197 U.S. 11 (1905) 8
Jeovahs Witnesses v. King County Hospital Unit,
390 U.S. 598 (1968) 8
People v. Kevorkian, 447 Mich. 436 (1994),
cert. denied 115 S. Ct. 1795 (1995) 6
Planned Parenthood of Southeastern Pennsylvania v. Casey,
505 U.S. 833 (1992) 2,6
Quill v. Koppell, 870 F.Supp. 78 (S.D.N.Y. 1994) 6
Quill v. Vacco, 80 F.3d 716 (2d Cir. 1996) 5, passim
Roe v. Wade,
410 U.S. 113 (1973) 8
Schloendorf v. Society of New York Hospital,
211 N.Y. 125 (1914) 18
State ex rel. Swann v. Pack, 527 S.W. 2d 99 (Tenn. 1975),
cert denied, 424 U.S. 954 (1976) 8
In re Storar, 52 N.Y. 363, cert. denied,
454 U.S. 858 (1981) 18
Webster v. Reproductive Health Services,
492 U.S. 490 (1989) 2
Matter of Westchester County Medical Center,
72 N.Y. 2d 517 (1988) 19
Statutes
N.Y. Public Health Law ¤ 2982 (McKinney's 1993) 19
N.Y. Public Health Law ¤ 2984 (McKinney's 1993) 20
Other Authorities
Alexander, Medical Science Under Dictatorship,
241, New England Journal of Medicine 40 (1949) 22
Bleich, The Quinlan Case: A Jewish Perspective,
Jewish Bioethics 266 (Heb. Pub. Co. 1979) 2
Binding & Hoche, Permission for the Destruction of Life Unworthy of Life
(1920)
22
Burleigh, Death and Deliverance: 'Euthanasia' in Germany, 1940-45
(Cambridge
University Press 1994) 22
Carter, The Culture of Disbelief
236 (Basic Books 1993). 6
Jakobovits, Regarding the Law Whether it is Permitted
to Hasten the End of a Terminal Patient in Great Pain,
31 Ha-pardes 29 (1956) 3
Mead, From Black and White Magic to Modern Medicine,
22 Proceedings of the Rudolf Virchow Medical Society 131
(1965) . . . . . 3
New York State Task Force on Life and the Law, When Death is Sought:
Assisted
Suicide and Euthanasia in the Medical Context 121-34 (1994) 8,21
Rosner, Modern Medicine and Jewish Ethics,
225-39 Ktav Publishing House, Yeshiva University Press
(1986). . . . . . 3
Rules of the Supreme Court of the United States
Rule 37.1 (1990) 7
Siegler & Weisbard, Against the Emerging Stream:
Should Fluids and Nutritional Support be Discontinued?,
145 Archives of Internal Medicine 130 (1985) 23
Tribe, American Constitutional Law
(2d Ed. 1988). 13,14
Wertham, The German Euthanasia Program,
31 (1980) . . . 24
Nos. 95-1858, 96-110
In The
Supreme Court of the United States
October Term, 1996
DENNIS C. VACCO, et al.
Petitioners,
v.
TIMOTHY E. QUILL, M.D., et al.
Respondents.
On Petition for a Writ of Certiorari
to the United States Court of Appeals
for the Second Circuit
STATE OF WASHINGTON, at ano.,
Petitioners,
v.
HAROLD GLUCKSBERG, M.D., et al.,
Respondents.
On Petition for a Writ of Certiorari
to the United States Court of Appeals
for the Ninth Circuit
BRIEF OF AGUDATH ISRAEL OF AMERICA AS
AMICUS CURIAE IN SUPPORT OF THE PETITIONERS
INTEREST OF THE AMICUS CURIAE
Agudath Israel of America, a national grassroots Orthodox Jewish
movement founded in 1922, is deeply concerned about the rulings below and the
broader implications they hold for the future, and respectfully submits this
brief as amicus curiae in support of the respective petitioners.
Informed by classical Jewish tradition which teaches that all human life
is sacred, and possessed of the firm view that laws and judicial rulings
that undermine the sanctity of human life send a message that is profoundly dangerous
for all of society, Agudath Israel speaks out frequently, in a variety of legal and
policy settings, on a broad array of issues that arise at the onset and
conclusion of the human life cycle. In this court, for example, Agudath Israel has
submitted briefs as amicus curiae in the abortion rights cases of Webster v. Reproductive
Health Services (decision reported at 492 U.S. 490 (1989)) and Planned
Parenthood of Southeastern Pennsylvania v. Casey (decision reported at 505 U.S. 833
(1992)); and -- more directly relevant to the issues involved in the instant case -- in
the "right to die" case of Cruzan v. Director, Missouri Department of Health
(decision reported at 497 U.S. 261 (1990)).
Agudath Israel's interest in the issue of physician assisted suicide is
especially keen. It is a basic principle of Jewish law and ethics that
"[m]an does not possess absolute title to his life or body." J.D. Bleich, The
Quinlan Case: A Jewish Perspective, reprinted in Jewish Bioethics 266, 270 (Hebrew
Publishing Co. 1979). Agudath Israel believes that recognition of that teaching, as
expressed in the historical disapprobation of suicide and euthanasia, has served as
one of the pillars of civilized societies throughout the generations. That pillar
is now in peril.
It is yet another principle of Jewish law and ethics that a doctor's
role is to provide healing, not to hasten death. See I. Jakobovits, Regarding
the Law Whether it is Permitted to Hasten the End of a Terminal Patient in Great
Pain, 31 Ha-pardes 29 (1956). Doctors who assist in the commission of suicide,
even when motivated by the most humane of concerns, exceed the bounds of their own
Hippocratic mandate and undermine public confidence in the medical profession.
Anthropologist Margaret Mead -- herself a supporter of certain forms of euthanasia, so
long as they are under lay initiative and control -- has urged that "the medical
profession should not be compromised by participation" in euthanasia; "[t]he
physician's dedication to the saving of life is of incalculable value to humanity and
must be protected form repeated efforts to involve the doctor in lethal
activities." M. Mead, From Black and White Magic to Modern Medicine, 22 Proceedings of
the Rudolf Virchow Medical Society 131 (1965). Agudath Israel views with
considerable alarm the transformation of the physician's calling envisioned by the decisions
below.
Moreover, as representatives of a people whose numbers were decimated
little more than half-a-century ago by a society that "progressed" from its
"enlightened" practices of "mercy killing" to the mass slaughter of millions of human
beings deemed physically or racially "inferior," Agudath Israel is particularly
sensitive to the legal assignment of diminished levels of life protection based on
diminished levels of life "quality". The decisions below reflect this dangerous
trend away from the recognition of life's inherent sanctity and present a stark
challenge to our nation's social morals.
Agudath Israel submits this brief upon the consent of all parties.
ARGUMENT
The two federal circuit courts below -- the Ninth Circuit in Compassion
in Dying v. State of Washington, 79 F.3d 790 (9th Cir., March 6, 1996) (en
banc), request for rehearing denied, 85 F.3d 1440 (9th Cir. June 12,
1996); and the Second Circuit in Quill v. Vacco, 80 F.3d 716 (2d Cir., April 2, 1996) -- found
as-applied constitutional infirmities in Washington and New York state statutes that
make it a crime to "aid" another individual in committing or attempting to commit
suicide. The two rulings reached similar (though not identical) bottom lines, but
arrived at their destinations through different constitutional routes.
The Ninth Circuit found a due process "liberty interest in choosing the
time and manner of one's death," 79 F.3d at 798; and determined, in the
context of "competent, terminally ill adults who wish to hasten their deaths by
obtaining medication prescribed by their doctors," that such due process liberty
interest outweighed any countervailing interest asserted by the state. Id. at
838.
The Second Circuit, in contrast, relied on the equal protection clause
in holding that physicians are constitutionally permitted to "prescribe
drugs to be self-administered by mentally competent adults who seek to end their
lives during the final stages of a terminal illness." 80 F.3d at 718. Such persons,
reasoned the court, are "similarly circumstanced" to final-stage terminally ill
patients who enjoy the statutory and common law right to hasten their death by
authorizing termination of life support, id. at 729; and, the court concluded, there
is no legitimate state interest rationally served by distinguishing between the
two categories. Id. at 730-31.
Both grounds of decision, Agudath Israel submits, are wrong. The better
of the legal argument, we believe, is with the dissenting judges in the
Ninth Circuit en banc decision (79 F.3d at 839 (Beezer, J.), 857 (Fernandez, J.) & 857
(Kleinfeld, J.)); with the dissenting judges in the Ninth Circuit's subsequent
rejection of a request to have the en banc decision reheard by the full circuit court
(85 F.3d at 1440 (O'Scannlain, J.), 1446 (Trott, J.)); with the Ninth Circuit's
earlier panel opinion in Compassion in Dying v. State of Washington, 49 F.3d 585 (9th
Cir. 1995); with the Second Circuit's rejection of any fundamental due process right
to assisted suicide (80 F.3d at 723-25); with the district court's decision in Quill
v. Koppell, 870 F.Supp. 78 (S.D.N.Y. 1994); and with the Michigan Supreme Court in
People v. Kevorkian, 447 Mich. 436 (1994), cert. denied 115 S. Ct. 1795 (1995).
With respect to the due process argument, we share the view of these judges and courts
that this Court's broad dictum in Planned Parenthood of Southeastern Pennsylvania
v. Casey, 505 U.S. 833, 851 (1992) -- identifying "the right to define one's own
concept of existence, of meaning, of the universe, and of the mystery of human life"
as being "at the heart of liberty" -- does not elevate assisted suicide to the
status of a constitutionally protected right. With respect to the equal protection
argument, we contend, as have many courts, legislative and executive bodies, medical
associations and bioethical experts, that there is a sound basis of legal distinction
between what one commentator has termed "letting the patient die" and "making the
patient die." S.L. Carter, The Culture of Disbelief 236 (Basic Books 1993).
Mindful of the admonition that "[a]n amicus brief which does not serve
[the purpose of bringing relevant matter to the attention of the Court that
has not already been brought to its attention by the parties] simply burdens the
staff and facilities of the Court and its filing is not favored," Rule 37.1, Rules
of the Supreme Court of the United States (1990), we will not belabor the
reasons we think the constitution does not create any right to assisted suicide; they are
well articulated in the decisions and opinions cited in the preceding
paragraph, and are sure to be further developed by the petitioners themselves.
The focus of our argument, therefore, will be not on why we think the
decisions below are bad law, but why we think they are dangerous law.
The legalization of assisted suicide, even in the narrow contexts addressed
by the decisions below, has the potential to lead to tragic abuse (Point I,
infra). Moreover, the Ninth and Second Circuit rulings portend a
far-reaching relaxation of laws against assisted suicide and euthanasia, in contexts very different
than those in which the two cases arose (Point II, infra). Perhaps most troubling,
the two courts' determination that lives of diminished "quality" are entitled to
diminished constitutional protection ignores some important lessons of 20th century
history and sends a chilling message that could have a profoundly negative impact on
society at large (Point III, infra).
I. LEGALIZING ASSISTED SUICIDE, IN ANY FORM, COULD LEAD TO TRAGIC ABUSE
Agudath Israel takes both moral and legal exception to the notion that a
person enjoys unfettered personal autonomy to decide that his life is no longer
worth living. Society has the right to compel citizens to submit to
vaccination, Jacobson v. Massachusetts, 197 U.S. 11 (1905); to insist that a child
receive life-sustaining treatment even over the religiously motivated opposition of
his parents, Jeovahs Witnesses v. King County Hospital Unit, 390 U.S. 598 (1968); to
prevent a pregnant woman in her second trimester from receiving an abortion in an
unlicensed facility, Roe v. Wade, 410 U.S. 113, 163 (1973); to restrict the handling
of poisonous snakes and drinking poisonous substances as part of a religious
ceremony, State ex rel. Swann v. Pack, 527 S.W. 2d 99 (Tenn. 1975), cert denied 424
U.S. 954 (1976); to enact laws designed to protect users of highways "even against
the consequences of their own action," Bisenius v. Karns, 165 N.W. 2d 377,
382, appeal dismissed 365 U.S. 709 (1969).
There are particularly strong reasons to reject the view that the
generally accepted doctrine of personal autonomy in medical decision making should
allow patients to enlist their doctors' help in committing suicide. The
potential abuses of legalizing assisted suicide have been well catalogued by a host of
legal and medical observers. For example, in its landmark report opposing assisted
suicide, the 24-member New York State Task Force on Life and the Law, speaking
unanimously, noted the following concerns: the pressures patients would feel, from
their doctors and families, to opt for suicide; the inherent inequalities of our health
care delivery systems which tend to discriminate against the poor, the
handicapped and the elderly; the psychological vulnerability of the severely ill; the
risk of misdiagnosis of the patient's condition; the likelihood in many cases
that adequate treatment of pain and depression would dissuade the patient from seeking
death. New York State Task Force on Life and the Law, When Death is Sought:
Assisted Suicide and Euthanasia in the Medical Context 121-34 (1994). Indeed, these risk
factors will often raise serious doubts about whether a patient's request for
help in committing suicide is truly an expression of the patient's autonomous
will.
We concur with the Task Force's observation (Report at 121) that, "as a
society, we have better ways to give people greater control and relief
from suffering than by making it easier for patients to commit suicide or to
obtain a lethal injection."
II.
THE DECISIONS BELOW, IF AFFIRMED, ARE LIKELY TO LEAD TO A BROAD EXPANSION
OF THE RIGHT TO ASSISTED SUICIDE AND EUTHANASIA
On their faces, the Ninth and Second Circuit decisions are extremely
narrow. They apply only to fully competent terminally ill patients (or, in the
case of Quill, patients in the "final stages" of terminal illness) who have
clearly expressed their desire to commit suicide, and who seek only such
assistance from their physicians as is necessary for them to self-administer a lethal
dosage of drugs. However, the language of the decisions (especially the expansive
statements of the Ninth Circuit), and their reasoning (especially the equal
protection analysis of the Second Circuit), could well result in the expansion of the right
to assisted suicide and euthanasia far beyond the narrow confines in which the cases
arose. The Court would do well to ponder the ultimate destination of the paths the
Ninth and Second Circuits would have the constitution embark.
1. The Ninth Circuit's Candid Acknowledgments
The three patient-plaintiffs in Compassion in Dying (in this Court as
Glucksberg) were mentally competent, whose illnesses were deemed
"terminal" because their doctors had concluded they were irreversible and would likely cause
death within a relatively short time, and who clearly articulated their desire
to have their doctors furnish them with a lethal dosage of medication for their
own self-administration. The Ninth Circuit, however, candidly acknowledged that
its ruling in their favor was not so narrowly limited.
For one thing, said the court, it is not only doctors whose prescriptive
services are protected by the constitutional right to assisted suicide,
but also "those whose services are essential to help the terminally ill patient
obtain and take [the lethal prescription] and who act under the supervision or
direction of a physician... That includes the pharmacist who fills the prescription; the
health care worker who facilitates the process; the family member or loved one
who opens the bottle, places the pills in the patient's hand, advises him how many
pills to take, and provides the necessary tea, water or other liquids; or the
persons who help the patient to his death bed and provide the love and comfort so
essential to a peaceful death." 79 F.3d at 838 n.140. In addition, the court noted
that its holding encompassed the decisions of persons who are terminally ill not
only as that term is colloquially understood, but also as it is statutorily defined --
in Washington Sate, for example, persons who are in an irreversible coma or
a persistent vegetative state, regardless of their life expectancy. 79
F.3d at 831.
Significant though these acknowledgements are, it is in two other
respects that the Ninth Circuit's expansive articulation of its position is
especially noteworthy: (a) the court's view on physician-administered poison; and
(b) the court's recognition of the authority of surrogate decision makers.
(a) While the court expressly left for "future cases" the issue of a
doctor's right to inject a lethal dosage into a patient incapable of
self-administering the poison, it candidly indicated its view that this too would be
constitutionally protected:
"We do not dispute the dissent's contention that the prescription of
lethal medication by physicians for use by terminally ill patients who wish to
die does not constitute a clear point of demarcation between permissible and
impermissible medical conduct. We agree that it may be difficult to make a principled
distinction between physician-assisted suicide and the provision to terminally ill
patients of other forms of life-ending medical assistance, such as the administration
of drugs by a physician. We recognize that in some instances, the patient may be
unable to self-administer the drugs and that administration by the physician, or a
person acting under his direction or control, may be the only way the patient
may be able to receive them... We would be less than candid... if we did not
acknowledge that for present purposes we view the critical line in right-to-die cases as
the one between the voluntary and involuntary termination of an individual's
life. In the first case Ñ volitional death Ñ the physician is aiding or assisting a
patient who wishes to exercise a liberty interest, and in the other Ñ involuntary
death Ñ another person acting on his own behalf, or, in some instances society's,
is determining that an individual's life should no longer continue. We
consider it less important who administers the medication than who determines the
medication than who determines whether the terminally ill person's life shall end."
79 F.3d at 831-32 (footnotes omitted).
(b) The court emphasized that the constitutional demarcation it would
draw between "volitional death" and "involuntary death" was not intended to
imply that the right to request assistance in committing suicide is necessarily
personal to the patient himself. "[W]e should make it clear," wrote the court, "that a
decision of a duly appointed surrogate decision maker is for all legal purposes the
decision of the patient himself." 79 F.3d at 832 n.120. (Indeed, noted the court,
under certain circumstances, Washington law also regards the decisions of a
legal guardian as the decision of the patient himself, 79 F.3d at 818 (citing, inter
alia, In re Guardianship of Grant, 747 P.2d 445 (Wash. 1987), in which the Washington
Supreme Court authorized a legal guardian to "make a good-faith determination of
whether the withholding of life sustaining treatment would serve the incompetent
patient's best interests" where the patient's own wishes cannot be ascertained, 747 P.2d
at 457). Presumably, therefore, just as a duly appointed surrogate decision maker
could request a lethal prescription on a patient's behalf, so too could a legal
guardian in cases where his decisions are treated as the patient's own.)
It should be readily apparent that the Ninth Circuit's caveat about the
authority of surrogate decision makers undermines considerably its bright
line distinction between "volitional death" and "involuntary death".
Professor Tribe has summarized the three types of situations in which surrogate decision
makers have exercised "substituted judgment" on behalf of incompetent patients:
"There are basically three approaches courts have taken to decisionmaking
in treatment decisions for incompetent patients. First, if the patient had
when competent stated what decision she would have wanted made in this
situation, those wishes tend to be deemed decisive. Second, where there is no direct
evidence of the patient's preferences, if there is a relative or a friend who was close
enough to the patient to be able to surmise how she would have decided, this
relative or friend may be allowed to choose in the name of the patient. Third, if
there is no basis for deciding what the patient would have decided, a decision is
made according to what would be in the patient's 'best interests', as defined by the
court, by the patient's family, or by a court-appointed guardian."
L. Tribe, American Constitutional Law, ¤ 15-11 at 1368-69 (2d Ed. 1988)
(footnotes omitted). As Professor Tribe points out, however, "[a]ll three forms of
'substituted judgment' are at best imperfect ways to effectuate the patient's right
of self-determination. No matter how much evidence there is of subjective intent,
how well the guardian knew the patient, and how well-intentioned the
patient's guardian, family, and physician may be, there will always be some
residual doubt that the decision made in fact expresses what the patient would have
wanted done." Id. at 1369 (emphasis added; footnote omitted).
In sum, the Ninth Circuit would apparently extend the constitutional
right of assisted suicide to cases involving a surrogate decision maker's request,
based on his admittedly imperfect knowledge of an incapacitated terminal patient's
wishes, or perhaps even on his own assessment of the patient's best interests, to
have a doctor kill the patient. This brings to mind a prescient passage elsewhere in
Professor Tribe's treatise:
"As courts become more sympathetic to arguments that persons have a right
to die with dignity and that the state interest in the preservation of life may
sometimes be subordinated to an individual's right to die, there is a possibility
that doctrines which are intended to facilitate the exercise of this right
will be exploited, either intentionally or unwittingly, to practice the most
terrible discrimination against handicapped persons who require medical treatment
to stay alive: judgments that their disabilities are such that persons afflicted
with them would be better off dead and thus should be 'allowed' to die. The most
pernicious discriminatory bias against the disabled that one can imagine -- the
desire of families or others to dispose of handicapped persons whom they simply
consider undesirable -- might be effectively disguised behind their requests, made
in the name of the disabled's right to die, that medical treatment be withheld
from the disabled. The right to die, in other words, may offer a convenient
pretext for profoundly discriminatory decisionmaking."
L. Tribe, supra, ¤ 16-31 at 1598-99 (footnotes omitted).
2. Implications of the Second Circuit's Equal Protection Analysis
The Second Circuit took pains to give its ruling a more moderate veneer
than that of its sister court. The court expressly rejected any substantive
due process right to assisted suicide, 80 F.3d at 723-25; determined that the equal
protection claim would be judged under the less exacting standard of rational basis
scrutiny, id. at 727; intimated that the right to assisted suicide would not
authorize a physician to inject a lethal dosage into a patient incapable of
self-administering the dosage, id at 730 n.3; said nothing about the right of a surrogate
decision maker to request suicide assistance on behalf of an incapacitated
patient; and limited the terms of its holding to patients in the final stages of
terminal illness, id. at 731.
In fact, however, it may well be that the Second Circuit's ruling
creates an even more expansive right to assisted suicide than does the Ninth
Circuit's. That is because of a basic difference between the respective judicial
inquiries under the due process and equal protection clauses.
As the Ninth Circuit pointed out, the due process constitutional claim
of a patient seeking suicide assistance will be determined, like all
substantive due process claims, by weighing the strength of the various competing
interests present in any given circumstance. The court's calibration of those competing
interests led it to its bottom line determination: "The liberty interest at issue
here...in the case of the terminally ill, is at its peak. Conversely, the state
interests, while equally important in the abstract, are for the most part at a low point
here." 79 F.3d at 837. While Agudath Israel believes, as elaborated infra, that
the Ninth Circuit incorrectly undervalued the state's interest in preserving the
life of even terminally ill persons there is at least some room for argument that the
due process balancing framework will enable courts, in cases involving non-terminal
patients where the balance of competing interests tips in favor of the state, to
draw the line: "So far down the slope, but no farther." The equal protection
framework embraced by the Second Circuit, in contrast, would appear to include no
such line-drawing braking mechanism.
The relevant equal protection inquiry here is not how strong the state's
interest is in preserving life in any given context, but whether treating
"similarly circumstanced" persons differently is rationally related to a legitimate
state interest. As the Court stated in Hooper v. Bernalillo County Assessor,
472 U.S. 612 (1985): "When a state distributes benefits unequally, the distinctions it
makes are subject to scrutiny under the Equal Protection Clause of the Fourteenth
Amendment. Generally, a law will survive that scrutiny if the distinction rationally
furthers a legitimate state purpose." Id. at 618 (footnote omitted; emphasis
added). Accordingly, once one accepts the Second Circuit's conclusion that a
patient who seeks termination of life support and a patient who seeks poison are
"similarly circumstanced persons" who must be treated identically unless the state
can demonstrate that treating them differently rationally advances a
legitimate state interest, 80 F.3d at 729; and once one accepts the court's additional
conclusion that no such rational basis of distinction exists when the two persons
are in the final stages of terminal illness, id. at 730-31 -- there is no readily
apparent logical way of drawing lines anywhere along the slope.
In reaching its holding that the prohibition against assisted suicide,
as applied to final-stage terminally ill patients, violates the equal
protection clause, the Second Circuit posed a series of dramatic questions, and an
equally dramatic answer:
"But what interest can the state possibly have in requiring the
prolongation of a life that is all but ended? Surely, the state's interest lessens as the
potential for life diminishes... And what business is it of the state to require
the continuation of agony when the result is imminent and inevitable? What
concern prompts the state to interfere with a mentally competent patient's 'right
to define [his] own concept of existence, of meaning, of the universe, and of the
mystery of human life' [citation omitted], when the patient seeks to have drugs
prescribed to end life during the final stages of a terminal illness? The greatly
reduced interest of the state in preserving life compels the answer to these
questions: 'None.'" 80 F.3d at 729-30.
The questions are indeed dramatic, and so is the response -- but they
are also highly misleading. For they imply that the equal protection analysis
would be different in cases where the state's interest in preserving life would be
stronger than the Second Circuit deems it to be at the final stages of terminal
illness. In fact, however, since the relevant inquiry is not whether the state has a
rational basis to preserve life, but whether it has a rational basis to
distinguish between patients who refuse life support and patients who seek the means to
commit suicide, it should make no equal protection difference whatsoever how far along
the patient's terminal illness has progressed, or even whether he is terminally ill
altogether. The strength of the state's interest in preserving life is simply not
relevant to the equal protection inquiry, for it does not speak to any distinction
the law might draw between the two patients "similarly circumstanced."
The implication of the Second Circuit's ruling, therefore, is that
wherever the law permits an individual to forgo life support, equal protection
demands that it also permit him to request a lethal prescription. The Second
Circuit's apparent moderation is only skin deep; beneath its deceptively mild surface lies
constitutional radicalism.
Consider the body of New York law implicated most directly by the ruling
below. The right of competent persons to decline or discontinue
life-sustaining medical intervention was first established at common law in Schloendorf
v. Society of New York Hospital, 211 N.Y. 125, 129 (1914), where Judge Cardozo
enunciated the basic doctrine of personal autonomy in medical decision-making: "[E]very
human being of adult years and sound mind has a right to determine what shall be done
with his body; and a surgeon who performs an operation without his patient's
consent commits an assault, for which he is liable in damages." In re Storar, 52 N.Y.
363, 376-77, cert. denied, 454 U.S. 858 (1981), makes clear that the common law right
of personal autonomy includes the right to refuse treatment necessary to preserve
one's life. The New York courts have not limited such right to patients who are
terminally ill -- certainly not to patients who are in the final stages of their terminal
illness. Given the Second Circuit's rejection of any distinction between refusing
life support and requesting poison, if a young patient with a good prognosis
for recovery enjoys the common law right to refuse a life-saving operation, should he
not also enjoy the right to a lethal prescription?
The same question will apply when a third party is legally authorized to
make a decision on an incapacitated patient's behalf. Under New York common
law, "the right to decline treatment is personal and...could not be exercised by a
third party when the patient is unable to do so" unless there is "clear and
convincing evidence" that the incapacitated patient would have refused life support.
Matter of Westchester County Medical Center, 72 N.Y. 2d 517, 528-29 (1988). New
York's legislature, however, has started moving away from the "clear and
convincing evidence" standard. Most notably, in 1990, a statute was enacted
empowering a duly designated health care agent to make virtually any life-and-death
treatment decision on behalf of his incapacitated principal, irrespective of the principal's
medical condition or prognosis. Such decisions are to be made on the basis of
the principal's wishes; or, where the principal's wishes "are not reasonably
known and cannot with reasonable diligence be ascertained," on the basis of the
principal's "best interests." N.Y. Public Health Law ¤ 2982 (McKinney's 1993).
Indeed, the state legislature has been considering proposed new legislation developed
by the New York State Task Force on Life and the Law, introduced in the 1995-96
legislative session as S. 5020 / A.6791, which would empower surrogates -- third
parties appointed by the law, not by the patient -- to make decisions under
certain medical circumstances to refuse life-sustaining treatment where the patient's
"best interests" would be so served. The Second Circuit's equal protection
analysis, it would seem, should empower such agents or third party surrogates to ask
that the patient be provided with poison as well, so long as they deem it to be in
the patient's "best interests."
There is yet one other noteworthy aspect of New York law: the legal
obligation of an individual health care provider to carry out the instructions of
patients and their duly appointed health care agents; or, if doing so would violate
the provider's religious beliefs or sincerely held moral convictions, to
cooperate in facilitating transfer of the patient to another medical practitioner who
is prepared to carry out such wishes. N.Y. Public Health Law ¤ 2984 (McKinney's
1993). If a doctor has religious beliefs or moral convictions that preclude him from
helping the patient commit suicide, would not the Second Circuit's equal protection
analysis require his cooperation in transferring the patient to a doctor who has
no such qualms?
New York is not atypical in its recognition of a patient's right to
decline life-sustaining interventions, either personally or through an agent or
surrogate; if anything, New York's common law takes a harder line than most other
states in insisting on clear and convincing evidence of an incapacitated patient's
wishes. See Cruzan v. Director, Missouri Dept. of Health, supra, 497 U.S. at
270-77. If the Second Circuit's ruling is permitted to stand, its impact will be
widespread, profound -- and, in our view, devastating.
III. ASSIGNING DIMINISHED LEGAL PROTECTION TO A LIFE OF DIMINISHED MEDICAL QUALITY
FOLLOWS DANGEROUS HISTORICAL PRECEDENT
In evaluating the state's interest in preserving and protecting a
person's life, the Ninth Circuit determined that the strength of the interest
depends, in part, on the person's medical condition; when the person is terminally
ill and wants to die, the strength of the state interest is low. 79 F.3d at 837.
Similarly, the Second Circuit concluded -- unnecessarily for its equal protection
analysis, as elaborated supra -- that the state's interest in preserving life "lessens
as the potential for life diminishes." 80 F.3d at 729. In so doing, the courts
below all but nullified this Court's observation that "a State may properly decline
to make judgments about the 'quality' of life that a particular individual may
enjoy, and simply assert an unqualified interest in the preservation of human life."
Cruzan, supra, 497 U.S. at 282.
Historical precedent confirms the wisdom of allowing society to treat
human life, whatever its medical "quality", as an inherent good that deserves
state protection. One need look no further than the contemporary example of
the Netherlands, where many physicians have apparently engaged in
nonvoluntary euthanasia despite that nation's limited authorization of only voluntary
euthanasia. The New York State Task Force on Life and the Law described this "abuse"
as "an inevitable byproduct of the transition from policy to practice" of
permitting the taking of human life "as a 'therapeutic' alternative." When Death Is
Sought, supra, at 133-34.
The history of the German euthanasia program earlier this century, under
which some 200,000 mentally ill or physically disabled people were put to death
by German doctors, see generally M. Burleigh, Death and Deliverance: 'Euthanasia'
in Germany 1900-45 (Cambridge Press 1994), also bears consideration. Burleigh cites
Binding and Hoche's 1920 tract Permission for the Destruction of Life Unworthy of
Life -- "by far the most influential contribution to the debate on euthanasia" --
as being premised on "the idea that every individual had sovereign powers to
dispose of his or her own life as he or she saw fit; specifically to commit suicide."
Upon that foundation the authors constructed a model that would lead to widespread
medical killing in the name of mercy and social utilitarianism. Death and
Deliverance, supra at 15-17.
In 1949, Dr. Leo Alexander, chief medical consultant to the prosecution
at the Nuremberg War Crimes Tribunal, offered this trenchantly chilling analysis
of the origins of the euthanasia program in Germany:
"Whatever proportions these crimes finally assumed, it became evident to
all who investigated them that they had started from small beginnings. The
beginnings at first were merely a subtle shift in emphasis in the basic attitude of the
physicians. It started with the acceptance of the attitude, basic in the
euthanasia movement, that there is such a thing as life not worthy to be lived.
This attitude in its early stages concerned itself merely with the severely and
chronically sick. Gradually, the sphere of those to be included in this category was
enlarged to encompass the socially unproductive, the ideologically unwanted, the
racially unwanted and finally all non-Germans. But it is important to realize
that the infinitely small wedged-in lever from which this entire trend of mind
received its impetus was the attitude toward the nonrehabilitable sick."
Alexander, Medical Science Under Dictatorship, 241, New England Journal
of Medicine 40, 46 (1949). Dr. Alexander sounded a warning to his fellow Americans:
"American physicians are still far from the point of thinking of killing
centers, but they have arrived at a danger point of thinking, at which likelihood
of full rehabilitation is considered a factor that should determine the amount of
time, effort and cost to be devoted to a particular type of
patient....Americans should remember that the enormity of a euthanasia movement is present in their
own midst." Id.
We do not mean to suggest that constitutionalizing a right to assisted
suicide is likely to lead to the type of moral collapse that occurred in the
German medical profession earlier this century. As two commentators have noted,
however, we dare not ignore the lessons of that dark era:
"We have witnessed too much history to disregard how easily a society may
disvalue the lives of the 'unproductive.' The 'angel of mercy' can become the
fanatic, bringing the 'comfort' of death to some who do not clearly want it, then
to others who 'would really be better off dead,' and finally, to classes of
'undesirable persons,' which might include the terminally ill, the permanently
unconscious, the severely senile, the pleasantly senile, the retarded, the incurably or
chronically ill, and perhaps, the aged. . . . In the current environment, it may
well prove convenient - and all too easy - to move from recognition of an
individual's 'right to die' (to us, an unfortunate phrasing in the first instance) to a
climate enforcing a 'duty to die.'"
Siegler & Weisbard, Against the Emerging Stream: Should Fluids and
Nutritional Support be Discontinued?, 145 Archives of Internal Medicine 130-31
(1985).
Yet another commentator issued this bleak observation:
"What makes the administrative mass killings so outstanding is not their
numbers, their efficiency, or their cruelty, but the fact that they occurred in an
epoch when nobody thought it was humanly or socially possible. Therein lies their
deepest lesson. If it was possible then, why not again? What has fundamentally
changed? The curtain may have gone down -- but only for the intermission." F.
Wertham, The German Euthanasia Program 31 (1980).
In the decisions below, we detect -- ever so faintly, ever so benignly,
but ever so ominously -- the rustling of the curtain once again.
CONCLUSION
The constitution can be a powerful engine of social change -- for
better, and for worse. As Agudath Israel sees it, the rulings of the Ninth and
Second Circuits are examples of constitutionalism at its most dangerous.
For the reasons set forth in petitioners' briefs, and the additional
reasons set forth herein, Agudath Israel of America respectfully urges the Court
to reverse the rulings below and clarify the limits of constitutional moral
revolution.
Respectfully submitted,
To the extent the Ninth Circuit below meant to suggest that Judaism
"views suicide with equanimity or acceptance,"
Compassion in Dying v. Washington, 79 F.3d 790, 807 n.24 (1996) (see
also id. at 808 n.25), the court was simply wrong. The general rule is
that suicide and its facilitation are strictly forbidden under Jewish
law, no matter how unbearable life may have become. See generally F.
Rosner, Modern Medicine and Jewish Ethics, 225-39 (Ktav Publishing
House, Yeshiva University Press 1986).