Stemming the Tide: Assisted Suicide and the Constitution

Ga. Code Ann. § 16-5-5(b) (1993); Ill. Ann. Stat. ch. 38, § 12-31(a)(1)–(2) (Smith-Hurd 1993); Ind. Code Ann. § 35-42-1-2.5 (West 1993); and Tenn. Code Ann. § 39-13-2 (1993).

See Lee v. Oregon, 891 F. Supp. 1429 (D. Or. 1995) (enjoining the law from going into effect); see also infra note 63 and accompanying text.

Compassion in Dying v. State of Washington, 850 F. Supp. 1454 (W.D. Wash. 1994).

Compassion in Dying v. State of Washington, 49 F.3d 586, reh'g en banc granted, 62 F.3d 299 (9th Cir. 1995).

Quill v. Koppell, 870 F. Supp. 78 (S.D.N.Y. 1994).

People v. Kevorkian, 527 N.W.2d 714 (Mich. 1994), cert. denied, 115 S. Ct. 1795 (1995).

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

See, for example, Austin v, Michigan State Chamber of Commerce, 494 U.S. 652, 666 (1990).

Youngberg v. Romeo, 457 U.S. 307, 320 (1982).

See, for example, Concrete Pipe & Products of California, Inc. v. Construction Laborers Pension Trust, 113 S. Ct. 2264 (1993).

See Cruzan, 497 U.S. at 277. For an early articulation of this common law principle, see Schloendorff v. Society of N.Y. Hosp., 105 N.E. 92 (1914) ( Cardozo J. ) (“[E]very individual of sound mind and adult years has a right to determine what should be done with his own body.”).

See, for example, In re Colyer, 660 P.2d 738 (1983) (affirming order authorizing removal of respirator from woman in persistent vegetative state); In re Eichner, 438 N.Y.S.2d 266 (authorizing the withdrawal of a respirator from an eighty-three-year-old permanently unconscious man who had clearly expressed his opposition to the artificial prolongation of his life), cert. denied, 454 U.S. 858 (1981); and In re Spring, 405 N.E.2d 115 (1980) (authorizing termination of hemodialysis treatment for seventy-seven-year-old man with advanced senility and end-stage kidney disease).

Note, “Physician-Assisted Suicide and the Right to Die with Assistance,” Harvard Law Review, 105 (1992): At 2021.

Id. at 2029 (“[T]he physician's act—turning off the respirator—is a cause-in-fact of the death: But for turning off the machine, the patient would be alive today.”); see also Fletcher J. , “The Courts and Euthanasia,” Law, Medicine & Health Care, 15 (1987/88): At 225 (“[T]he primary causative act is the moral one of removing the supports.”).

Note, supra note 13, at 2028–29.

Compassion in Dying, 850 F. Supp. at 1461.

See, for example, Colyer, 660 P.2d at 743 (“A death which occurs after the removal of life sustaining systems is from natural causes, neither set in motion nor intended by the patient.”); and Brophy v. New England Sinai Hosp., Inc., 497 N.E.2d 626 (1986) (following Colyer).

See, for example, In re Conroy, 486 A.2d 1209, 1224 (1985) (arguing that, although death might result from the refusal of treatment, “it would be the result, primarily, of the underlying disease, and not the result of a self-inflicted injury.”); and McKay v. Bergstedt, 801 P.2d 617 (1990) (following Conroy).

See, for example, Colyer, 660 P.2d at 743.

Cruzan, 497 U.S. at 280.

Quill, 870 F. Supp. at 83.

Compassion in Dying, 49 F.3d at 594.

Compassion in Dying, 850 F. Supp. at 1459–60.

Planned Parenthood v. Casey, 112 S. Ct. 2791 (1992).

850 F. Supp. at 1460.

Capron A.M. , “Easing the Passing,” Hastings Center Report, 24, no. 4 (1994): At 25.

Bowers v. Hardwick, 478 U.S. 186 (1986).

Michael H. v. Gerald D., 491 U.S. 110 (1989) (plurality opinion).

Marzen T.J. , “Suicide: A Constitutional Right?,” Duquesne Law Review, 24 (1985): At 76.

See Gostin L.O. , “Drawing a Line Between Killing and Letting Die: The Law, and Law Reform, on Medically Assisted Dying,” Journal of Law, Medicine & Ethics, 21 (1993): 94–101.

American Law Institute, Model Penal Code and Commentaries (Philadelphia: American Law Institute, Vol. 2, 1980): § 210.5, comment at 94 (concluding that “there is no form of criminal punishment that is acceptable for a completed suicide and that criminal punishment is singularly inefficacious to deter attempts to commit suicide”). See generally Alesandro J.A. , Comment, “Physician-Assisted Suicide and New York Law,” Albany Law Review, 57 (1994): 820–925.

Kevorkian, 527 N.W.2d at 733.

Compassion in Dying, 49 F.3d at 590.

See, for example, Colyer, 660 P.2d at 743.

Bowers, 478 U.S. at 186. See generally West R. , “The Ideal of Liberty,” University of Pennsylvania Law Review, 139 (1991): At 1373 (commenting on the “conservative” nature of traditional constitutional jurisprudence).

For a thorough discussion of the interests at stake, see New York State Task Force on Life and the Law, When Death is Sought: Assisted Suicide and Euthanasia in the Medical Context (New York: New York State Task Force on Life and the Law, 1994): At 121–34.

Sedler R. , “The Constitution and Hastening Inevitable Death,” Hastings Center Report, 23, no. 5 (1993): 22–25.

Conwell Y. Caine E.D. , “Rational Suicide and the Right to Die: Reality and Myth,” N. Engl. J. Med., 325 (1991): 1100–03. For an overview of clinical data on the relationship between suicide and untreated depression and pain, see New York State Task Force, supra note 36, at 9–47.

Breitbart W. , “Psychiatric Management of Cancer Pain,” Cancer, 63 (1989): 2336–42; and Holland J.C. , Chief, Psychiatry Services, Memorial Sloan-Kettering Cancer Center, Letter to the New York State Task Force on Life and the Law, Aug. 16, 1993.

Jacox A. , Management of Cancer Pain, Clinical Practice Guideline No. 9 (Rockville: DHHS, AHCPR No. 94-0592, Mar. 1994): At 8; and Solomon M.Z. , “Decisions Near the End of Life: Professional Views on Life-Sustaining Treatments,” American Journal of Public Health, 83 (1993): At 18–19.

NIH Consensus Development Panel on Depression in Late Life, “Diagnosis and Treatment of Depression in Late Life,” JAMA, 268 (1992): 1018–24.

New York State Task Force, supra note 36, at 43–47.

Cleeland C.S. , “Pain and its Treatment in Outpatients with Metastatic Cancer,” N. Engl. J. Med., 330 (1994): 592–96.

See, for example, American Medical Association, Council on Ethical and Judicial Affairs, “Black-White Disparities in Health Care,” JAMA, 263 (1990): 2344–46; and Blendon R.J. , “Access to Medical Care for Black and White Americans,” JAMA, 261 (1989): 278–81.

Rodwin M.A. , “Conflicts in Managed Care,” N. Engl. J. Med., 332 (1995): 604–07.

Compassion in Dying, 49 F.3d at 592.

Portenoy R.K. , “Determinants of the Willingness to Endorse Assisted Suicide: A Survey of Physicians, Nurses, and Social Workers,” unpublished, 1994 (on file with the New York State Task Force on Life and the Law).

New York State Task Force, supra note 36, at 123.

Kass L. , “Why Doctors Must Not Kill,” Commonweal, 118, no. 14, supp. (1991): At 473.

49 F.3d at 592.

See, for example, Quill T.E. Cassel C.K. Meier D.E. , “Care of the Hopelessly Ill: Proposed Clinical Criteria for Physician-Assisted Suicide,” N. Engl. J. Med., 327 (1992): 1380–84.

See Kamisar Y. , “Are Laws Against Assisted Suicide Unconstitutional?,” Hastings Center Report, 23, no. 3 (1993): 32; and Kamisar Y. , “Assisted Suicide and Euthanasia: The Cases Are in the Pipeline,” Trial, Dec. (1994): 30–35.

See, for example, New York Transit Auth. v. Beazer, 440 U.S. 568 (1979) (upholding an absolute ban on employment of users of narcotic drugs, including methadone users, despite the fact that the ban did not apply to patients in methadone treatment programs, because “any special rule short of total exclusion … is likely to be less precise.”).

United States v. Lee, 455 U.S. 252, 259 (1982).

Kreimer S. , “Does Pro-Choice Mean Pro-Kevorkian? An Essay on Roe, Casey, and the Right to Die,” American University Law Review, 44 (1995): At 803.

Conroy, 486 A.2d at 1209.

Fosmire v. Nicoleau, 551 N.Y.S.2d 876 (1990).

Compassion in Dying, 49 F.3d at 591.

Quill T.E. , “The Care of Last Resort,” New York Times, July 23, 1994, at A19.

See generally Hendin H. , “Seduced by Death: Doctors, Patients, and the Dutch Cure,” Issues in Law & Medicine, 10 (1994): 123–68.

Tribe L. , American Constitutional Law (New York: Foundation Press, 2d ed., 1988): § 15–11, at 1370.

Cruzan, 497 U.S. at 261 ( Brennan J. , dissenting).

Lee, 891 F. Supp. at 1429.

Id. at 1437.