Are laws prohibiting physician-assisted suicide justified by legitimate state interests?

TABLE OF CONTENTS

TABLE OF AUTHORITIES

INTEREST OF AMICUS CURIAE

SUMMARY OF ARGUMENT

ARGUMENT

• I. THE COURTS BELOW DISMISSED THE STATES' INTEREST IN PRESERVING LIFE BY FAILING TO CONSIDER THE OPPORTUNITIES TO FIND VALUE DURNG THE LAST STAGE OF LIFE


• II. STATES ARE JUSTIFIED IN DISTINGUISHING BETWEEN ASSISTED SUICIDE AND THE WITHDRAWAL OF LIFE-PROLONGING TREATMENT


• A. Determining How Long a Terminally-Ill Patient Has to Live Is Notoriously Difficult.


• B. Empowering Physicians to End Life Would Irrevocably Change the Way Care Is Perceived and Undermine Hospice Care as a More Appropriate Option for Care of the Terminally Ill.

CONCLUSION

ENDNOTES

TABLE OF AUTHORITIES

Cruzan ex rel. Cruzan v. Director, Missouri Dep't of Health, 497 U.S. 261(1990)

Schloendorff v. Society of New York Hosp., 105 N.E. 92 (N.Y. 1914)

Snyder v. Massachusetts, 291 U.S. 97 (1934)

United States v. Dixon, 509 U.S. 688 (1993)

STATUTES:

42 U.S.C. ¤ 1395x (dd)

OTHER AUTHORITIES:

Agency for Health Care Policy and Research, Clinical Practice Guideline No.5: Depression in Primary Care (1993)

Agency for Health Care Policy and Research, Clinical Practice Guideline No.9: Management of Cancer Pain (1994)

American Board of Internal Medicine, Caring for the Dying: Identificationand Promotion of Physician Competency -Educational Resource Document (1996)

Susan D. Block & J. Andrew Billings, Patient Requests to Hasten Death:Evaluation and Management in Terminal Care, 154 Archives Internal Med. 2039(1994)

William Breitbart et al., Interest in Physician-Assisted Suicide AmongAmbulatory HIV-Infected Patients, 153 Am. J. Psychiatry 238 (1996)

Howard Brody & Joanne Lynn, The Physician's Responsibility Under the NewMedicare Reimbursement for Hospice Care, 310 New Eng. J. Med. 920 (1984)

Ira Byock, Dying Well: The Prospect for Growth at the End of Life(forthcoming 1997)

Ira R. Byock, The Nature of Suffering and the Nature of Opportunity at theEnd of Life, 12 Clin. Geriatric Med. 237 (1996)

Courtney S. Campbell et al., Conflicts of Conscience: Hospice and AssistedSuicide, Hastings Ctr. Rep., May-June 1995, at 36

Mark E. Chopko & Michael F. Moses, Assisted Suicide: Still A WonderfulLife?, 70 Notre Dame L. Rev. 519 (1994)

Nicholas A. Christakis & Jose J. Escarce, Survival of Medicare PatientsAfter Enrollment in Hospice Programs, 335 New Eng. J. Med. 172 (1996)

Yeates Conwell & Eric D. Caine, Rational Suicide and the Right to Die, 325New Eng. J. Med. 1100 (1991)

David Cundiff, Euthanasia Is Not the Answer: A Hospice Physician's View(1992)

Kathleen M. Foley, The Relationship of Pain and Sympton Management toPatient Requests for Physician-Assisted Suicide, 6 J. Pain & Symptom Mgmt.289 (1991)

Judy Foreman, 70% Would Pick Hospice, Poll Finds, Boston Globe, Oct. 4,1996, at A3

Milton D. Heifetz & Charles Mangel, The Right to Die (1975)

Herbert Hendin, Seduced by Death: Doctors, Patients and the Dutch Cure, 10issues L. & Med. 123 (1994)

Yale Kamisar, Are Laws Against Assisted Suicide Unconstitutional?, HastingsCtr. Rep., May-June 1993 at 32

J. Eugene Knott & Eugenia Wild, Anticipatory Grief and reinvestment, in Lossand Anticipatory Grief 55 (Therese A. Rando ed., 1986)

Harold G. Koenig et al., Attitudes of Elderly Patients and Their FamiliesToward Physician-Assisted Suicide, 156 Archives Internal Med. 2240 (1996)

Michael H. Levy, Pharmacologic Treatment of Cancer Pain, 335 New Eng. J.Med. 1124 (1996)

Joanne Lynn et al., Accurate Prognostications of Death: Opportunities andChallenges for Clinicians, 163 West J. Med. 250 (1995)

Thomas J. Marzen et al., Suicide: A Constitutional Right?, 24 Duquesne L.Rev. 1 (1985)

Daryl J. Miller, Legal Killing: The Imminent Legalization of a Physician'sAffirmative Aid-in-Dying , 34 Santa Clara L. Rev. 663 (1994)

New York State Task Force on Life and the Law, When Death is Sought:Assisted Suicide and Euthanasia in the Medical Context (1994)

Nancy J. Osgood, Assisted Suicide and Older People - A Deadly Combination:Ethical Problems in Permitting Assisted Suicide, 10 Issues L. & Med. 415(1995)

Robert A. Pearlman, Inaccurate Predictions of Life Expectancy: Dilemmas andOpportunities, 148 Archives Internal Med. 2537 (1988)

Physician-Assisted Suicide and Euthanasia in the Netherlands: A Report ofChairman Charles T. Canady to the Subcomm. On the Const. Of the House Comm.On the Judiciary, 104th Cong., 2d Sess. (1996)

John F. Potter, A Challenge for the Hospice Movement, 302 New Eng. J. Med.53 (1980)

Elliott J. Rosen, Families Facing Death: Family Dynamics of Terminal Illness(1990)

Sandol Stoddard, The Hospice Movement: A Better Way of Caring for the Dying(rev. ed. 1992)

Warren L. Wheeler, Hospice Philosophy: An Alternative to Assisted Suicide,20 Ohio N.U. L. Rev. 755 (1994)

Jack M. Zimmerman, Hospice: Complete Care for the Terminally Ill (1981)

The Cutting Edge: Vital Statistics, Wash. Post, Oct. 8, 1996 at Z5

The National Hospice Organization ("NHO") 1 is a non-profit, public-benefit,charitable organization dedicated to promoting and maintaining quality carefor the needs of terminally-ill persons and their families. Established in1978, NHO currently represents more than 2,200 hospice programs and 47 state hospice organizations, as well as over 4,000 hospice professionals andsupporters.

NHO's organizational mission is to enhance the end of life for people dyingin America by ensuring access to quality hospice care. Hospice, in thiscontext, refers not to a place, but rather to a program of care, based on aphilosophy that recognizes dying as part of the normal process of living andfocuses on enhancing the quality of remaining life. As a central tenet, thehospice philosophy affirms life and seeks neither to hasten nor to postpone death.

A hospice is a coordinated health care program that provides palliative andsupportive care to terminally-ill patients and their families, twenty-fourhours a day, seven days a week, at home or in home-like facilities. With afocus on enhancing the quality of life for both the patient and the family,hospices provide physical, social, spiritual, and emotional care, using amedically-directed interdisciplinary team consisting of professionals andvolunteers. A typical hospice team includes a hospice physician; thepatient's attending physician; and one or more nurses, social workers,pastoral or other counselors, home health aides, and volunteers. 2

In order to help patients make the most of the time that remains to them,hospices establish pain control and symptom management as clinical goals.Moreover, hospices understand the need to treat patients' emotional needs aswell as their physical requirements and recognize that psychological pain isas significant as physical pain.

Hospices are unique in that they include the patient's family and friendswithin the unit of care and help family members as an essential part oftheir mission. Accordingly, hospices provide a wide variety of support forfamily members and friends while their loved one is dying, as well asbereavement care after the person has died.

The hospice philosophy also affirms the right of those who are dying to makeas many choices as possible for themselves --- both in living what is leftof life and in dealing with fatal illness. An important component of hospicecare, therefore, is enhancing the ability of patients to control their livesfor as long as possible, even in the terminal phase of their illness.Accordingly, NHO has supported the right of terminally-ill patients torefuse intrusive, life-prolonging treatment or nourishment. Dying patientsmust have the right to make the choice to refuse interventions designed toprolong the dying process.

NHO does not, however, agree with the courts below that because States mustallow terminally-ill people to refuse such unwanted treatments, they mustalso allow physicians to assist terminally-ill patients to end their livesby suicide. Hospice professionals, who deal with dying patients every day,see these issues as presenting very different risks and benefits to theterminally ill, their families, and society at large.

NHO recognizes that the vast majority of people in this country have strongfeelings about issues relating to death. It is a subject affecting us all,and our views are likely to be colored by introspection and fear. It is forthat very reason that we must be extremely careful that we use the properstandard for determining the legitimacy of a legislature's conclusions. Weshould ask ourselves not whether a dying individual has a right, uninhibitedby legislative intervention, to choose to have a doctor assist in hissuicide, but rather whether the State has a legitimate interest in seeing toit that its citizens be given every opportunity to decide to live,unimpaired by such factors as pain and depression.

It is important, therefore, that this Court be fully aware of a middleground available between the two extremes of physician-assisted suicide anda death devoid of peace and dignity. In that middle ground is hospice.Without statutes such as those at issue in this case, hospices will have noopportunity to assist persons who simply wish to die become persons wishingto live until they die.

The decisions below failed to appreciate that the final stage of lifepresents opportunities for meaningful experiences that could be lost withoutthe State's protection of life and prevention of assisted suicide even amongthe terminally ill. Moreover, many terminally-ill patients seek assistancewith suicide not because they cannot be cured, but rather because theycannot bear the physical pain and depression that often accompany terminalillness. These factors can almost always be ameliorated.

Hospice care provides a proven, effective alternative to assisted suicidethat is ideally suited to ameliorate the factors underlying the desire forsuicide among the terminally ill. By emphasizing palliative care, thehospice movement has succeeded in increasing awareness in the medicalcommunity of the need to treat pain and symptom management aggressively.Furthermore, hospices understand the psychological dimension of sufferingand are committed to treating the depression and fear that surround terminalillness. When patients suffering from terminal illness are given properpalliative and supportive care, the desire for assistance with suicidegenerally disappears. Hospices provide substantial benefits to the patients'families as well, by including them in the unit of care and by providingthem with the counseling, support, and anticipatory grief work that hasproven so effective in softening the blow of a loved one's death. Likehospices, States can legitimately place value on the end of life by refusingto support the practice of physician-assisted suicide.

States are also justified in retaining the traditional distinction betweenassistance with suicide and the withdrawal of life-prolonging treatment. Themedical literature does not support the confidence of the courts below inthe ability of medical professionals to distinguish between those who areand are not in the final stages of a terminal illness, and errors inprognosis would have tragic consequences if they were to form the basis forassisted suicide. Abandoning the traditional distinction between assistancewith suicide and the withdrawal of life-prolonging treatment would alsothwart recent efforts to increase awareness in both the medical communityand the public of the benefits of the comprehensive program of palliativeand supportive care offered by hospices. Finally, acceptance of assistedsuicide among the terminally ill would place hospices and other health careproviders in an untenable position by diminishing the level of trust betweenthe health care provider and patient that is critical to the provision ofeffective care. Given the adverse consequences that would flow from therecognition of a right to assisted suicide, this Court should adhere to thedistinction between assistance with suicide and the withdrawal oflife-prolonging treatment.

ARGUMENT

I. THE COURTS BELOW DISMISSED THE STATES' INTESEST IN PRESERVING LIFE BY FAILING TO CONSIDER THE OPPORTUNITIES TO FIND VALUE DURING THE LAST STAGE OF LIFE.

While recognizing the State's interest in preserving the lives of all itscitizens, the courts below found that this interest was attenuated when thelives being preserved suffered from terminal illness. As the Second Circuitreasoned:

[W]hat 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? * * * The greatly reduced interest of the state in preserving life compels the answer to these questions: "None."

No. 95-1858 Pet. App. 31a (citation omitted). Similarly, the Ninth Circuitfound the State's interest in preventing suicides to be "substantiallydiminished in the case of terminally ill, competent adults who wish to die."No. 96-110 Pet. App. A-73 to A-74. The Ninth Circuit concluded that undersuch circumstances "the state's interest in preventing such individuals fromhastening their deaths [was] of comparatively little weight." Id. At A-74;see also id. A-89 (reasoning that the state interest in protecting familymembers and loved ones "is of almost negligible weight when the patient isterminally ill").

What the courts below failed to recognize is that the final stage of lifemay be a time of profound opportunity for terminally-ill individuals andtheir families. The hospice experience has taught that life is not "all butended" simply because a person suffers from a terminal illness, nor does"the potential for life diminish[]." Dying is an intrinsic part of beinghuman, and like life's other phases, dying offers unique challenges andopportunities. Given proper support, dying can become an important, valuedlife event. As one commentator has noted, "However diminished the body andhowever changed the life circumstances in later life, the mind and spiritcan still flourish. At all stages of life, even as we are sick and dying, wehave the capacity to set new goals, redefine the self, and find validmeaning and integrity in our existence." Nancy J. Osgood, Assisted Suicideand Older People - A Deadly Combination: Ethical Problems in PermittingAssisted Suicide, 10 Issues L. & Med. 415, 433 (1995); see also Ira R.Byock, The Nature of Suffering and the Nature of Opportunity at the End ofLife, 12 Clin. Geriatric Med. 237, 248 (1996).

By treating the end of life as meaningless, the courts below adopted anunnecessarily static view that is unable to accommodate the changing natureof life and of the self. Osgood, 10 Issues L. & Med. At 433. Had thesecourts acknowledged that dying is a part of the normal process of living andthat like all of life's stages it presents substantial opportunities forpersonal growth and development, they would have recognized that the Statehas an interest in preserving life even in the face of terminal illness.Instead, the courts below adopted a view of dying which admitted only twopossibilities: unrelieved misery or assisted suicide. As the Ninth Circuitreasoned, when all that lies ahead is "debilitating pain and a humiliatingdeath, the decision to commit suicide is not senseless." No. 96-110 Pet.App. A-74. This truncated view of dying ignores the fact that it is almostalways possible to ameliorate the factors underlying the desire for suicideamong the terminally ill.

Numerous studies have documented that uncontrolled pain is a major riskfactor for suicide among the terminally ill. See, e.g., Susan D. Block & J.Andrew Billings, Patient Requests to Hasten Death: Evaluation and Management in Terminal Care, 154 Archives Internal Med. 2039, 2040 (1994); see also Physician-Assisted Suicide and Euthanasia in the Netherlands: A Report of Chairman Charles T. Canady to the Subcomm. On the Const. Of the House Comm. On the Judiciary, 104th Cong., 2d Sess. 10 (1996). Sadly, although such physical suffering can almost always be alleviated, until recently physical pain has been woefully undertreated in this country. See, e.g., Block & Billings, 154 Archives Internal Med. At 2040; Kathleen M. Foley, The Relationship of Pain and Symptom Management to Patient Requests forPhysician-Assisted Suicide, 6 J. Pain & Symptom Mgmt. 289, 290-293 (1991);Michael H. Levy, Pharmacologic Treatment of Cancer Pain, 335 New Eng. J.Med. 1124, 1124 (1996).

Indeed, the undertreatment of pain in terminally-ill patients was one of thefactors underlying the development of the first American hospices in theearly 1970's. In the intervening decades, however, not only has the hospicemovement spread throughout the United States, but, more recently, theorganizations that set standards for the practice of medicine have embarkedon efforts to educate doctors about palliative care techniques and toencourage appropriate treatment of pain and other symptoms, with the endresult that pain should no longer be a cause for ending one's life. Agencyfor Health Care Policy and Research, Clinical Practice Guideline No. 9:Management of Cancer Pain (1994); American Board of Internal Medicine,Caring for Dying: Identification and Promotion of Physician Competency -Educational Resources Document (1996).

Depression is another factor that renders terminally-ill patients vulnerableto thoughts of assisted suicide. See, e.g., William Breitbart et al.,Interest in Physician-Assisted Suicide Among Ambulatory HIV-InfectedPatients, 153 Am. J. Psychiatry 238, 239, 241 (1996); Foley, 6 J. Pain &Symptom Mgmt. At 294-295; Yale Kamisar, Are Laws Against Assisted SuicideUnconstitutional?, Hastings Ctr. Rep., May-June 1993, at 32, 38. Whendepressed, people lose the ability to compare suicide with alternativesolutions or with the prospects for a meaningful future. Thus, victims ofdepression quickly view their problems as unresolvable and are led tothoughts of escape through death. Furthermore, depression exaggerates thetendency to see the world in black and white terms and encourages theadoption of extreme solutions, such as suicide. Thomas J. Marzen et al.,Suicide: A Constitutional Right?, 24 Duquesne L. Rev. 1, 119 (1985); HerbertHendin, Seduced by Death: Doctors, Patients and the Dutch Cure, 10 Issues L.& Med. 123, 134 (1994); Osgood, 10 Issues L. & Med. At 428. Such depressionis readily treatable, see, e.g., Block & Billings, 154 Archives InternalMed. At 2042; Yeates Conwell & Eric D. Caine, Rational Suicide and the Rightto Die, 325 New Eng. J. Med. 1100, 1101 (1991), and the typical primary carephysician who heretofore has been ill-equipped to recognize treatabledepression among the elderly and the terminally ill is now being trained tooffer just such relief, see, e.g., Agency for Health Care Policy andResearch, Clinical Practice Guideline No. : Depression in Primary Care(1993).

The treatment of the pain and depression accompanying terminal illness is an important focus of hospice professionals' work. They also deal, however,with a number of other fears associated with terminal illness in the mindsof most Americans. 3 An important component of a hospice team's role is tohelp the patient and family understand the progression of the patient'sdisease, so that changes are not unexpected and plans can be made,increasing the sense of control that is so important to well-being. Bytraining families and other caregivers and supporting them in their care ofthe patient through respite care and the assistance of volunteers, hospiceshelp to reduce the burden of caring for a dying relative or friend. Throughhospice care, families and loved ones may also benefit from interacting withothers facing the same predicament. Daryl J. Miller, Legal Killing: TheImminent Legalization of a Physician's Affirmative Aid-in-Dying, 34 SantaClara L. Rev. 663, 703 (1994) (citing Milton D. Heifetz & Charles Mangel,The Right to Die 164 (1975) ). Counselors may also use this final phase foranticipatory grief work to help prepare for the sense of loss thataccompanies the death of a loved one. Id.; Elliott J. Rosen, Families FacingDeath: Family Dynamics of Terminal Illness 97 (1990); J. Eugene Knott &Eugenia Wild, Anticipatory Grief and Reinvestment, in Loss and Anticipatory Grief 55, 57-59 (Theresa A. Rando ed., 1986). But most importantly, hospices can allow patients and their families to use the process of dying as an opportunity to resolve outstanding issues. There are countless stories of how families have used life's final stage as the chance to complete social roles and responsibilities, to reconcile previously strained relationships,and to deepen intimate relationships even further. See, e.g., Rosen, supra,at 96; Ira Byock, Dying Well: The Prospect for Growth at the end of Life(forthcoming 1997) (copy lodged with the Clerk of the Court). As onecommentator has noted, "Making the patient whole again and bringing families together at the bedside is what hospice does best." Miller, 34 Santa Clara L. Rev. At 703 (citing Jack M. Zimmerman, Hospice: Complete Care for the Terminally Ill 45 (1981)).

The real proof of hospice as a preferable option for care of the terminallyill lies in the results. The evidence demonstrates that when terminally-illpersons who request assistance with suicide are treated for depression andare given proper palliative and supportive care, they tend to change theirminds about assisted suicide. David Cundiff, Euthanasia Is Not the Answer: AHospice Physician's View 23-24 (1992); New York State Task Force on Life andthe Law, When Death is Sought: Assisted Suicide and Euthanasia in theMedical Context 26 (1994); Mark E. Chopko & Michael F. Moses, AssistedSuicide: Still a Wonderful Life?, 70 Notre Dame L. Rev. 519, 531-532, 537(1994); Hendin, 10 Issues L. & Med. At 164; Osgood, 10 Issues L. & Med. At429. When physical and psychological suffering are successfully addressed,the patient becomes free to pursue the greatest amount of personalfulfillment possible in his or her remaining life. 4

In this sense, terminally-ill individuals who seek assistance with suicideare not that different from "the depressed twenty-one year old, theromantically devastated twenty-eight year old, [and] the alcoholicforty-year old" whose suicides the Ninth Circuit acknowledged would besenseless. No 96-110 Pet. App. A-74 (internal quotation marks omitted). Asthat court conceded, "the state has a clear interest in preventing anyone,no matter what age, from taking his own life in a fit of desperation,depression, or loneliness or as a result of any other problem, physical orpsychological, which can be significantly ameliorated." Id. at A-73. Thus,according to that Ninth Circuit's own logic, the fact that the factors thatcause the terminally ill to consider seeking assistance with suicide, suchas pain and depression, can be treated is enough to justify the State'sprohibition of it. In the vast majority of cases, overturning the state banson assisted suicide in the name of personal dignity or autonomy, simplybecause certain people want it, is no more defensible than permitting thedepressed twenty-one year old, the romantically devastated twenty-eight yearold, and the alcoholic forty-year old to commit suicide. The fact that somepeople may truly want physicians to help them kill themselves is beside thepoint. As one commentator noted, "The acceptance of euthanasia forpsychiatric patients who are suicidal is simply bad psychiatry. * * *Seriously suicidal patients want suicide. In a society that makes euthanasiaaccessible for them they will be harder to treat, not easier." Hendin, 10Issues L. & Med. At 164.

Had the Courts of Appeals understood that "[t]he hospice way of dying * * *offers a middle path between two undesirable approaches in caring for theterminally-ill patient - curative, high technology medicine on one hand, anddeath by euthanasia on the other hand," Courtney S. Campbell et al.,Conflicts of Conscience: Hospice and Assisted Suicide, Hastings Ctr. Rep.,May-June 1995, at 36, 37, they never would have felt constrained by thefalse dichotomy represented by those two options. Hospice offers patientsand their families the opportunity to deal with the pain, depression, andother experiences caused by dying and - unlike the alternative ofphysician-assisted suicide - gives them the opportunity to continue to live.5 In light of the availability of hospice care as a means to alleviate thephysical and psychological suffering that underlies terminally-ill patients'desire for assistance with suicide and the potential benefits to thepatients' families, the States of Washington and New York were more thanjustified in concluding that their interest in preserving life was just asstrong during the last stage of life as it was during all of life's otherstages.

II. STATES ARE JUSTIFIED IN DISTINGUISHING BETWEEN ASSISTED SUICIDE AND THE WITHDRAWAL OF LIFE-PROLONGING TREATMENT.

The courts below also erred in challenging the legitimacy of the historicaldistinction between assistance with suicide and the withdrawal oflife-prolonging treatment or nourishment. See No. 95-1858 Pet. App. 29a-34a;No. 96-110 Pet. App. A-76 to A-82. In discarding this distinction, thecourts below overlooked the legal basis and the practical benefits of thisdoctrinal line. Moreover, the distinction -- the distinction betweenterminally ill and non-terminally ill individual - is fraught with seriouspractical problems. This Court should adhere to its prior practice ofrefusing to extend constitutional rights when such an extension would proveunworkable, see, e.g., United States v. Dixon, 509 U.S. 688, 711 (1993), andreverse the decisions below.

A. Determining How Long a Terminally-Ill Patient Has to Live is NotoriouslyDifficult.

The Ninth Circuit's decision hinged on its conclusion that the State'sinterests in prohibiting assistance with suicide diminished during "thefinal stages of an incurable and painful degenerative disease," No. 96-110Pet. App. A-74, when a patient's "death is imminent," id. At A-89. 6Similarly, the Second Circuit ruled that it was "during the final stages ofa terminal illness" when death is "imminent and inevitable" that the State'sinterest in preserving life abated. No. 5-1858 Pet. App. 31a. 7 Although theNinth Circuit "acknowledge[d] that it is sometimes impossible to predictwith certainty the duration of a terminally ill patient's remainingexistence," No. 96-110 Pet. App. A-83, the courts below each expressed theirconfidence in the medical profession's ability to define terminal illness insuch a way that would adequately protect patients from the ill effectsresulting from errors in medical and legal judgment. See id. At A-83, A-103to A-104; No. 95-1858 Pet. App. 34a.

Medical research, however, has demonstrated the difficulties that surroundany determination of how long a terminally-ill patient has to live. 8 Asmedical researchers have noted, "physicians typically make poor judgmentsabout survival in terminally ill patients." Nicholas A. Christakis & Josˇ J.Escarce, Survival of Medicare Patients After Enrollment in Hospice Programs,335 New Eng. J. Med. 72, 176 (1996); see also Robert A. Perlman, InaccuratePredictions of Life Expectancy: Dilemmas and Opportunities, 148 ArchivesInternal Med. 2537, 2537 & nn.2-6 (1988); Howard Brody & Joanne Lynn, ThePhysician's Responsibility Under the New Medicare Reimbursement for Hospice Care, 310 New Eng. J. Med. 920, 921 & nn.3-5 (1984); John F. Potter, AChallenge for the Hospice Movement, 302 New Eng. J. Med. 53 (1980).Specifically, assessments of a patient's chances for survival are oftenbiased by the attending physician's recent experiences, which can often leadthe physician to overestimate or underestimate the importance of aparticular variable. Joanne Lynn et al., Accurate Prognostications of Death:Opportunities and Challenges for Clinicians, 163, West J. Med. 250, 251(1995).

Moreover, the tools of medical prognosis still have yet to account forvariations in treatment in an adequate manner. This is particularlyproblematic because the manner in which the estimate of prognosisnecessarily affects treatment options creates a feedback effect that in turnmay influence the estimate itself. Id. At 256. Such problems are only likelyto increase as medical technology continues to improve. Potter, 302 New Eng.J. Med. At 53. Finally, the need for accuracy in such a determinationnecessarily varies according to the implications surrounding a particularprognosis. Perlman, 148 Archives Internal Med. At 2537-38. In light of theindeterminacy surrounding the decision as to who is and who is not in thefinal stages of a terminal illness, the confidence of the courts below inthe ability of physicians to apply adequate definitions of terminal illnessseems unwarranted. 9

This Court should avoid the practical difficulties surrounding thedefinition of terminal illness and should instead base its legal principleson the well-established distinction between assistance with suicide and thewithdrawal of life-prolonging treatment the legal support for the right torefuse life-prolongin treatment has been derived by some courts from theright to privacy (right to be left alone). 10 Others have based this righton liberty interests (freedom from unwarranted state intrusions into bodilyintegrity). As this Court observed in Cruzan, "[t]he principle that acompetent person has a constitutionally protected liberty interest inrefusing unwanted medical treatment may be inferred from [this Court's]prior decisions." 11 Indeed, "freedom from unwanted medical attention isunquestionably among those principles 'so rooted in the traditions andconscience of our people as to be ranked as fundamental.'" 12

A right to refuse unwarranted invasions of bodily integrity, however, isdifferent from a right to the assistance of a physician in taking one's ownlife. The first involves protecting oneself against unwanted medicaltreatment; the second involves enlisting the aid of practitioners to carryout acts inimical to the physician's purpose and creed. The legal andethical differences between the two are manifest.

B. Empowering Physicians to End Life Would Irrevocably Change the Way Care Is perceived and Undermine Hospice Care as a More Appropriate Option forCare of the Terminally Ill.

Ironically, the attempt by the courts below to show sympathy forterminally-ill patients threatens to undercut the ability of hospice care torelieve these patients' suffering. As noted earlier, the medical communityhas only recently begun to appreciate fully the importance of treatingphysical and emotional pain and other symptoms aggressively and of providing comprehensive palliative care when cure is not possible. The legalization of assisted suicide would divert attention and support away from these important efforts. See Chopko & Moses, 70 Notre Dame L. Rev. At 532; Miller, 34 Santa Clara L. Rev. At 704.

An increased focus on assisted suicide as an option would also impede thegrowing public awareness of the benefits of hospice care. A recent Galluppoll indicated that fully 82% of adults have heard of hospice care, and 88%would choose hospice-style care if they were terminally ill and had lessthan six months to live. More importantly, the public, when made aware ofthe kinds of services provided by hospices, prefers hospice care to assistedsuicide. The fact that more people indicated a preference for hospice carein this poll, in which the context suggested hospice as an alternative tosuicide, than did so in previous surveys that did not mention hospice careas an option further underscores the influence that ignorance aboutalternatives to assisted suicide has on public attitudes about care for theterminally ill. See Judy Foreman, 70% Would Pick Hospice, Poll Finds, Boston Globe, Oct. 4, 1996, at A3.

The acceptance of assisted suicide as a way to deal with terminal illnesswould undercut further efforts to increase the public's awareness of hospiceas a life-affirming option. 13 States are justified in prohibiting assistedsuicide if for no reason other than to avoid the tragedy of having aterminally-ill patient opt for assisted suicide simply out of ignoranceabout the alternatives.

Finally, the establishment of a constitutional right to assisted suicidewould irrevocably distort the picture of end-of-life care so carefullypainted by hospices over the last twenty years. If assistance with suicidegains acceptance, some patients may seek such assistance from hospices,forcing hospices to choose between violating their commitment not to abandon any terminally-ill patient and their commitment neither to hasten nor to prolong death. Worse yet, acceptance of assisted suicide might well leadother patients to reject hospice care for fear that such assistance would beurged upon them. 14

The courts blow clearly erred in equating physician-assisted suicide withthe withdrawal of life-sustaining treatment and the relief of pain. It wouldbe tragic if the population at large were similarly confused. Hospicesregularly comply with patient's requests to withhold or withdraw artificialnutrition and hydration. Hospice physicians also regularly order medicationsto relieve pain, even when an unintended consequence might be the shortening of a terminally-ill patient's life. As Judge Kleinfeld noted, in labeling the Ninth Circuit's proposition "exactly wrong," "[k]nowledge of anundesired consequence does not imply that the actor intends thatconsequence." No. 96-110 Pet. App. A-162, A-163 (Kleinfeld, J., dissenting).It is important to hospices that people who approach them during the mostdifficult times of their lives have no doubt about the intent of care giventhem.

Dame Cicely Saunders is the physician who is generally credited withfounding the first modern-day hospice, London's St. Christopher's, in 1968.Thousands of hospice professionals and volunteers around the world haverepeated her promise to patients: "You matter to the last moment of yourlife, and we will do all we can, not only to help you die peacefully, butalso to live until you die." See Sandol Stoddard, The Hospice Movement: ABetter Way of Caring for the Dying 107 (rev. ed. 1992). The National HospiceOrganization asks only that this Court continue to value the lives ofterminally-ill patients and that this Court recognize the legitimateinterests of States in protecting those lives.

CONCLUSION

For the foregoing reasons, and for those set forth in the petitioners'briefs, the judgments below should be reversed.

Respectfully submitted,

Ann Morgan Vickery
E. Barrett Prettyman, Jr.*
Christopher S. Yoo
Hogan & Hartson L.L.P.
555 Thirteenth Street, N.W.
Washington, D.C. 20004
(202) 637-5685

Counsel for Amicus Curiae

* Counsel of Record

ENDNOTES

1. This brief is being filed with the consent of the parties, whose lettersof consent have been filed with the Clerk of the Court.

2. Hospice care is a covered benefit under Medicare, 42 U.S.C. ¤ 1395x (dd),as well as under most other public and private health insurance programs.The Medicare definition of hospice care and conditions of participation forhospice programs form the basis for many state licensure laws and areconsistent with NHO's Standards for a Hospice Program of Care.

3. At the request of NHO, the Gallup Organization recently surveyed anational sample of Americans on their knowledge and attitudes related tohospice care. One of the questions asked about fears associated with death.While one in seven (14%) mentioned the pain associated with dying, four inten (40%) said that being a burden to family and friends was their greatestfear. Other fears included lack of control (8%) and losing one's dignity(8%). The Cutting Edge: Vital Statistics, Wash. Post, Oct. 8, 1996, at Z5.

4. Dr. Herbert Hendin, Executive Director of the American SuicideFoundation, recounts the story of a patient named Tim who was given a 25%chance of survival and who was referred to Dr. Hendin for psychiatricconsultation:

His immediate reaction was a desperate preoccupation with suicide and a wish for support in carrying it out. At first he could not consider how he felt about death and its meaning to him but remained preoccupied with concerns about being dependent and unwilling to tolerate the symptoms of his disease or the side effects of proposed treatment. Once we could talk about the possibility or likelihood of his dying * * * , his desperate avoidance subsided. He decided to undergo medical treatment, complained relatively little about the unpleasant side effects, and used the remaining months of his life to connect with his wife and parents in ways that were moving and meaningful for him. Two days before he died, Tim talked of what he would have misused without the opportunity for a loving parting.

Hendin, 10 Issues L. & Med. At 128. Similar stories are recounted elsewhere.See, e.g., Marzen, 24 Duquesne. L. Rev. at 132-133; Byock, 12 Clin.Geriatric Med. At 245-246; Byock, Dying Well, supra.

5. As on hospice patient exclaimed, "I went to the hospital to be cured, andalmost died. Then I went into Hospice to die, and lived." See Warren L.Wheeler, Hospice Philosophy: An Alternative to Assisted Suicide, 20, OhioN.U. L. Rev. 755, 758 (1994).

6. As the Ninth Circuit reasoned, it is only during the final stage of lifewhen patients are "no longer able to pursue liberty or happiness," No.96-110 Pet. App. A-72, and "can only be maintained in a debilitated anddeteriorating state, unable to enjoy the presence of family or friends," id.At A-74, that the State's interests in preserving life and preventingsuicide recede.

7. See also No. 95-1858 Pet. App. 34a (noting that "[t]he plaintiffs seek tohasten death only where a patient is in the 'final stages' of a 'terminalillness'").

8. These problems are compounded by the fact that the legal and medicaldefinitions of the term "terminal illness" vary widely depending on thesituation, ranging from a diagnosis of a life-threatening or fatal diseaseto a prognosis of months or weeks to live. The Medicare statute providesthat "[a]n individual is considered to be 'terminally ill' if the individualhas a medical prognosis that the individual's life expectancy is 6 months orless." 42 U.S.C. ¤ 1395x (dd) (3) (A).

9. In light of these problems, the Ninth Circuit's statement that "should anerror actually occur it is likely to benefit the individual by permitting avictim of unmanageable pain and suffering to end his life peacefully andwith dignity at the time he deems most desirable" seems puzzling. No. 96-110Pet. App. A-83. How an erroneous determination of terminal illness thatwrongly encourages a patient to seek assistance with suicide inures to thebenefit of the patient is far from clear.

10. Cruzan ex rel. Cruzan v. Director, Missouri Dep't of Health, 497 U.S.261, 269 (1990) (citing Schloendorff v. Society of New York Hosp., 105 N.E.92, 93 (N.Y. 1914) ("Every human being of adult years and sound mind has aright to determine what shall be done with his own body * * * .")).

11. 497 U.S. at 278; see also id, at 289 (O'Connor, J., concurring) ("theliberty guaranteed by the Due Process Clause must protect, if it protectsanything, an individual's deeply personal decision to reject medicaltreatment").

12. Id. at 305 (Brennan, J., dissenting) (quoting Snyder v. Massachusetts,291 U.S. 97, 105 (1934)).

13. The Netherlands has already witnessed the debilitating effect thattolerance of assisted suicide can have on the hospice movement. Miller, 34Santa Clara L. Rev. at 663 n. 270 (attributing the scarcity of hospices inthe Netherlands to "the fact that accepting the active euthanasia decreasesthe incentive to create hospices"); see also Wheeler, 20 Ohio N.U. L. Rev.at 760.

14. People growing older have almost instinctively honed in on the ways thatassisted suicide might undermine the care that otherwise would be availableto them. A recent survey shows that elderly persons rejectphysician-assisted suicide, indicating that it is the people most vulnerableto the misuse of physician-assisted suicide who are most strongly opposed toit. Harold G. Koenig et al., Attitudes of Elderly Patients and TheirFamilies Toward Physician-Assisted Suicide, 156 Archives Internal Med. 2240,2248 (1996).