1 Cruzan v. Director, Missouri Dep’t of Health, 497 U.S. 261, 310-11 (1990) (Brennan, J., dissenting).

2 For purposes of this Note, physician-assisted suicide “occurs when a physician facilitates a patient’s death by providing the necessary means and/or information to enable the patient to perform the life-ending act.” Council on Ethical & Judicial Affairs, American Med. Ass’n, Decisions Near the End of Life, 261 JAMA 2229, 2229 (1992) [hereinafter Decisions].

3 79 F.3d 790, 816 (9th Cir.), cert, granted sub nom. Washington v. Glucksberg, 117 S. Ct. 37 (1996).

4 See id. at 838; see also U.S. Const, amend. XIV, § I.

5 The Ninth Circuit includes the following states and territories: Alaska, Arizona, California, Guam, Hawaii, Idaho, Montana, Nevada, Oregon and Washington.

6 80 F.3d 716, 727 (2d Cir.), cert, granted, 117 S. Ct. 36 (1996); see also U.S. Const. amend. XIV, § 1.

7 See Quill, 80 F:3d at 729.

8 See Vacco v. Quill, 117 S. Ct. 36, 36 (1996) (granting cert.); Washington v. Glucksberg, 117 S. Ct. 37, 37-38 (1996) (granting cert.).

9 See Bjorck, Catherine L., Comment, Physician-Assisted Suicide: Whose Life Is it Anyway?, 47 SMU L. Rev. 371, 379-82 (1994).Google ScholarPubMed

10 See Death with Dignity Act, 1995 Or. Laws ch. 3 (Initiative Measure No. 16) (codified at OR. Rev. Stat. §§ 127.800-.995 (1995)) [hereinafter Measure 16].

11 Id.; see also Caplan, Art, Oregon Voters Open Can of Worms with Assisted-Death Bill, Hous. Chron., Dec. 10, 1994, at 3.Google Scholar

12 See Gianelli, Diane M., Assisted Suicide Showdown Headed to High Court?, Am. Med. News, Aug. 21, 1995, at 1, 1.Google Scholar Both euthanasia and assisted suicide arc tolerated in the Netherlands, though not explicitly legal. See van der Maas, Paul J. et al., Euthanasia and Other Medical Decisions Concerning the End of Life, 338 Lancet 669, 669 (1991).CrossRefGoogle ScholarPubMed The Northern Territory of Australia recently legalized euthanasia and physician-assisted suicide. See, e.g., Thomasma, David C., When Physicians Choose to Participate in the Death of Their Patients: Ethics and Physician-Assisted Suicide, 24 J.L. Med. & Ethics 183, 188 (1996).Google ScholarPubMed However, on March 24, 1997, the Australian Senate voted to overturn the law. See Thornhill, Alan, Australia Repeals Euthanasia Law, Wash. Post, Mar. 25, 1997, at A14.Google Scholar Four people committed suicide with assistance while the law was in effect. See id.

13 See Or. Rev. Stat. § 127.800 (1995).

14 See Lee v. Oregon, 891 F. Supp. 1491, 1493 (D. Or. 1995).

15 Or. Rev. Stat. ch. 127.800 § 1.01(7).

16 Cf.. Baron, Charles H. et al., A Model State Act to Authorize and Regulate Physician-Assisted Suicide, 33 Harv. J. On Legis. 1, 4 (1996)Google Scholar (arguing that “it is reasonable to provide relief from suffering for patients who are dying or whose suffering is so severe that it is beyond their capacity to bear”).

17 See Or. Rev. Stat. § 163.125 (providing that “[c]riminal homicide constitutes manslaughter in the second degree when ... [a] person intentionally causes or aids another person to commit suicide”).

18 See Lee v. Oregon, 869 F. Supp. 1491, 1493 (D. Or. 1994).

19 See Lee, 891 F. Supp. at 1431.

20 See Lee, 869 F, Supp. at 1497.

21 See id.

22 See Lee, 891 F. Supp. at 1437.

23 Id.

24 The Court heard oral arguments on January 8, 1997, and is expected to issue a ruling by mid-summer. See Greenhouse, Linda, Before the Court, the Sanctity of Life and of Death, N.Y. Times, Jan. 5, 1997, §4, at 4.Google Scholar

25 See Compassion in Dying v. Washington, 79 F.3d 791, 838 (9th Cir. 1996).

26 On February 27, 1997, the Ninth Circuit effectively reversed the district court’s ruling in Lee v. Oregon. See Lee v. Oregon, 1997 WL 80783 (9th Cir. Feb. 27, 1997) The court held that the plaintiffs who challenged Measure 16 lacked standing. See id. at *6 (finding that “[n]one of the Plaintiffs can assert an ‘injury in fact* resulting from the alleged . . . violations”).

27 See Lee, 891 F. Supp. at 1437.

28 See Emanuel, Ezekiel J., Euthanasia: Historical, Ethical, and Empiric Perspectives, 154 Arch. Intern. Med. 1890, 1890-92 (1994).CrossRefGoogle ScholarPubMed

29 See Decisions, supra note 2, at 2229.

30 See id.

31 See id.; see also Emanuel, supra note 28, at 1898 (citing research demonstrating that 64% of the American public believes a physician should be allowed to administer a lethal injection to a terminally ill patient).

32 Decisions, supra note 2, at 2230 (quoting Hastings Ctr., Guidelines on the Termination of Life-Sustaining Treatment and Care of the Dying (1987)).

33 The Model Penal Code, which categorizes assisted suicide as a second degree felony, seems to consider suffering as a mitigating factor. Commentary to section 201.5 states that although it might be easier to treat assisted suicide as murder, “where a husband yielded to the urging of his incurably sick wife to provide her with the means of self-destruction, motives are too often mixed ... to make the case compelling.” Model Penal Code § 201.5 cmt. 1 (Tentative Draft No. 9, 1959).

34 Brock, Dan W., Voluntary Active Euthanasia, Hastings Ctr. Rep., Mar.-Apr. 1992, at 10, 11.CrossRefGoogle ScholarPubMed

35 But see Emanuel, supra note 28, at 1894-95 (noting that opponents of assisted suicide believe that “death irreversibly alienates autonomy and cannot be condoned by appeal to autonomy”).

36 See Mangini, Leslie L., Note, To Help or Not to Help: Assisted Suicide and its Moral, Ethical, and Legal Ramifications, 18 Seton Hall Legis. J. 728, 733 (1994).Google Scholar

37 Id at 732.

38 Prohibitions against suicide and attempted suicide probably disappeared because “there is no form of criminal punishment that is acceptable for a completed suicide and . . . criminal punishment is singularly inefficacious to deter attempts to commit suicide.” Model Penal Code § 201.5 cmt. 2 (Proposed Official Draft 1962).

39 See, e.g., Or. Rev. Stat. § 163.117 (1993); see also Model Penal Code § 201.5 cmt. 1 (Tentative Draft No. 9, 1959) (concluding that assisted suicide should be prohibited); cf. Tsarouhas, Antonius P., The Case Against Legal Assisted Suicide, 20 Ohio N.U. L. Rev. 793, 795-96 (1993).Google Scholar

40 See, e.g., Model Penal Code § 210.5 cmt. 5 (Proposed Official Draft 1962); cf. Compassion in Dying v. Washington, 79 F.3d 790, 817 (9th Cir. 1996) (acknowledging the State of Washington’s unqualified interest in preserving life).

41 Model Penal Code § 210.5 cmt. 5 (Proposed Official Draft 1962).

42 See Mangini, supra note 36, at 731-32; see also infra text accompanying notes 193-97.

43 Kamisar, Yale, Are Laws Against Assisted Suicide Unconstitutional?, Hastings Ctr. Rep., May-June 1993, at 32, 39;CrossRefGoogle ScholarPubMed see also Herbert Hendin, Suicide in America 245 (2d ed. 1995) (arguing that “[j]ust as love-pact suicides rarely turn out to be affirmations of love, so the self- sacrificial suicide may lend itself to becoming the instrument of tyranny of the healthy over the aged and infirm”); Osgood, Nancy J., Assisted Suicide and Older People—A Deadly Combination: Ethical Problems in Permitting Assisted Suicide, 10 Issues L. & Med. 415, 418 (1995)Google ScholarPubMed (arguing that sanctioning assisted suicide among the elderly devalues old age). But see generally ANNAS, GEORGE J., The Insane Root Takes Reason Prisoner: The Supreme Court and the Right to Die, in Standard of Care: The Law of American Bioethics 85, 92 (1993)Google ScholarPubMed (adapted from Annas, George J., The Long Dying of Nancy Cruzan, 19 Law Med. & Health Care 52 (1991)CrossRefGoogle Scholar (noting that the “problem with the ‘right to life’ position is that it is exclusively a slippery-slope argument that ignores the current rights of real people in favor of the speculative harms that may be visited on future people”).

44 See, e.g., Kass, Leon R., Is There a Right to Die?, Hastings Ctr. Rep., Jan.-Feb. 1993, at 34, 37-38;CrossRefGoogle Scholar see also Compassion in Dying v. Washington, 79 F.3d 816, 830 (9th Cir. 1996) (noting that critics of the practice believe recognizing physician-assisted suicide will eventually lead to “court-sanctioned killing” of people deemed to pose an “unjustifiable burden on society”).

45 See Hendin, supra note 43, at 250-77; Emanuel, supra note 28, at 1896; see also van der Maas et al., supra note 12, at 673 (finding that “physicians who had practiced euthanasia mentioned that they would be most reluctant to do so again” and that they would only do so “in the face of unbearable suffering and with no alternatives”).

46 Emanuel, supra note 28, at 1896.

47 See van der Maas et al., supra note 12, at 672. Interviews with physicians who had practiced euthanasia showed that in 96% of the cases, their patients had explicitly and persistently requested assistance. See id. In 94%, the patients had made the request repeatedly. See id. In addition, 99% of physicians reported that they felt sure the requests had not been made under pressure from others. See id.

48 See Emanuel, supra note 28, at 1891-92.

49 Hippocrates, Hippocratic Writings xiii (Francis Adams trans., Encyclopedia Britannica, Inc. 1952).

50 The American Medical Association (AMA) refuses to support physician-assisted suicide or active voluntary euthanasia, on the grounds that they are “contrary to the prohibition against using the tools of medicine to cause a patient’s death.” Decisions, supra note 2, at 2233. Some, however, envision a substantially broader role for doctors near the end of their patients* lives. See, e.g., Timothy E. Quill, A Midwife Through the Dying Process 1-5 (1996).

The AMA does, however, approve of the “double effect” standard. See Decisions, supra note 2, at 2229, 2233. If a physician prescribes medication primarily to relieve a patient’s pain and suffering, then she is performing a proper medical function although she knows the patient will die because of her actions. See id.; see also Compassion in Dying v. Washington, 79 F.3d 790, 828 n.l02 (9th Cir. 1996).

Controversy surrounds this principle. George Annas argues that laws legalizing physician-assisted suicide arc unnecessary, because physicians can currently prescribe lethal medications as long as they have “a legitimate medical use to terminally ill patients.” George J. Annas, Death by Prescription; The Oregon Initiative, 331 New Eng. J. Med. 1240, 1242 (1994). In response, Dr. Quill has urged that the process become more open. See Timothy E. Quill, The Oregon Death with Dignity Act, 332 New Eng. J. Med. 1174, 1175 (1995). He notes that the double effect would exonerate physicians who knew their patients wanted to die, as long as the physicians intended that the prescribed medication be used to ease pain, not to cause death. See id. “Such laws and ethical distinctions reinforce pseudoconversations that are dangerous for patients and doctors, involving deception and unclear thinking at a time when honesty and openness are essential.” Id.

51 A recent survey found that 66% of responding Oregon-based physicians felt physician- assisted suicide would be ethical in some cases. See Lee, Melinda A. et al., Legalizing Assisted Suicide—Views of Physicians in Oregon, 334 New Eng. J. Med. 310, 311 (1996).CrossRefGoogle ScholarPubMed A separate study of physicians in Michigan found that fewer than 20% favored a complete ban on assisted suicide. See Bachman, Jerald G. et al., Attitudes of Michigan Physicians and the Public Toward Legalizing Physician-Assisted Suicide and Voluntary Euthanasia, 334 New Eng. J. Med. 303, 305 (1996).CrossRefGoogle ScholarPubMed

52 See Quill, Timothy E., Death and Dignity: A Case of Individualized Decision Making, 324 New Eng. J. Med. 691 (1991).CrossRefGoogle ScholarPubMed But see Annas, supra note 50, at 1243 (arguing that ‘“ideal’ cases, like that described by Quill, are an insufficient basis for changing public policy in a country where medicine continues to be practiced in the context of bias and social inequality”). Dr. Quill has fought to overturn laws prohibiting physician-assisted suicide on constitutional grounds. See, e.g., Quill v. Vacco, 80 F.3d 716, 721 (2d Cir. 1996); see also discussion infra Part III.C.

53 See, e.g., Kass, supra note 44, at 37 (categorizing supporters of the “right to die” as “[c]hildren looking at parents who are not dying fast enough, hospital administrators and health economists concerned about cost-cutting and waste, [and] doctors disgusted with caring for incurables”).

54 See, e.g., Emanuel, supra note 28, at 1895. These concerns stem in part from statistics demonstrating that the suicide rate in the United States rises with age. See Hendin, supra note 43, at 81. “Persons over the age of 50, while making up 26 percent of the total United States population, account for approximately 39 percent of the total deaths by suicide each year.” Id.

55 Cf. Bartholome, William G., Physician-Assisted Suicide, Hospice, and Rituals of Withdrawal, 24 J.L. Med. & Ethics 233, 233-34 (1996)CrossRefGoogle ScholarPubMed (arguing for increased use of hospice care instead of suicide or assisted suicide).

56 However, the contention that in a world with ideal treatment options most suffering people would choose to live, does not lead invariably to the rejection of physician-assisted suicide. Presumably such a world would include some who would choose to die even after considering all of their options. Cf. Quill, supra note 50, at 4 (“The notion that all requests to physicians for assisted death stem from undcrtrcatcd pain, unrecognized depression, or some kind of character flaw is an illusion.”). But cf. Emanuel, supra note 28, at 1895 (arguing that even though adequate comfort would not prevent great pain and suffering in some cases, “this does not mean [euthanasia] should be legalized under the guise of promoting the well-being of patients in general”). By prohibiting assisted suicide in all cases, society might “protect” those who would ideally prefer life, and work to improve end-of-life treatment options. However, this would reject the decisions of persons who would choose death regardless of their options, denying them the autonomy they would have enjoyed in the more “perfect” world.

57 505 U.S. 833 (1992).

58 See Compassion in Dying v. Washington, 79 F.3d 790, 813-14 (9th Cir. 1996) (noting the similarities between a decision to have an abortion and a decision about how and when to die); Tucker, Kathryn L. & Burman, David J., Physician Aid in Dying: A Humane Option, a Constitutionally Protected Choice, 18 Seattle U. L. Rev. 495, 500 (1995)Google ScholarPubMed (arguing that no sound basis exists for excluding physician-assisted suicide from the scope of protection defined by Casey).

59 Casey, 505 U.S. at 851.

60 See id. at 850-52.

61 See, e.g., Tucker & Burman, supra note 58, at 500.

62 See Casey, 505 U.S. at 845-46, aff’g Roe v. Wade, 410 U.S. 113 (1973).

63 See id. at 877-79.

64 See id. at 877-78.

65 Id. at 877.

66 See Brownstcin, Alan, How Rights Are Infringed: The Role of Undue Burden Analysis in Constitutional Doctrine, 45 Hastings L.J. 867, 954 (1994)Google Scholar (“Inconsistencies and uncertainty in the application of the undue burden standard are unavoidable because there is no common foundation underlying the various rights that the Constitution protects.”).

67 See Compassion in Dying v. Washington, 79 F.3d 790, 832, 834-35 (9th Cir. 1996) (describing the effect of Washington’s prohibition of assisted suicide on the liberty interest of terminally ill people in choosing the time and manner of their deaths).

68 See Casey, 505 U.S. at 851.

69 Id. In Quill v. Koppell, the District Court for the Southern District of New York rejected the petitioners’ claims that New York’s prohibition of assisted suicide was contrary to the holdings of Roe and Casey. Quill v. Koppell, 870 F. Supp. 78, 83 (S.D.N.Y. 1994), rev’d sub nom. Quill v. Vacco, 80 F.3d 716 (2d Cir. 1996). The court stated that the plaintiffs’ “reading of these cases is too broad.” Quill, 870 F. Supp. at 83. But see Eiscnstadt v. Baird, 405 U.S. 438, 453 (1972) (noting that if “the right of privacy means anything, it is the right of the individual ... to be free from unwarranted governmental intrusion into matters . . . fundamentally affecting a person”).

70 Quill, 870 F. Supp. at 83.

71 497 U.S. 261 (1990).

72 See id. at 265.

73 See Cruzan v. Harmon, 760 S.W.2d 408, 425 (Mo. 1988).

74 See Cruzan, 497 U.S. at 280.

75 See Kass, supra note 44, at 40.

76 Cruzan, 497 U.S. at 278.

77 Bjorck, supra note 9, at 390.

78 Cruzan, 497 U.S. at 279.

79 See, e.g., Tucker & Burman, supra note 58, at 502-04 (contending that the liberty interest in refusing unwanted medical treatment cannot be distinguished from choosing to hasten inevitable death with active medical assistance); see also Quill v. Vacco, 80 F.3d 716, 727 (2d Cir. 1996) (finding one category of persons encompassing all those “in the final stages of fatal illness [who] wish to hasten their deaths”); Compassion in Dying v. Washington, 49 F.3d 586, 595 (9th Cir. 1995) (Wright, J., dissenting) (stating that a “Constitutional distinction cannot be drawn between refusing life-sustaining medical treatment and accepting physician assistance in hastening death”). But see U.S. Supreme Court Petitioner’s Brief at *7, Vacco v. Quill, 1996 WL 656345 (No. 95-1858) (arguing that the right to forgo treatment “derives from the common law right to bodily integrity and freedom from unwanted physical intrusions [whereas the] asserted ‘right* to physician-assisted suicide is ... a right to demand outside assistance in the taking of one’s own life”).

80 See, e.g., In re Quinlan, 355 A.2d 647, 665 (N.J. 1976) (noting “a real distinction between the self-infliction of deadly harm and a self-determination against artificial life support ... in the face of irreversible, painful and certain imminent death”).

81 See Annas, supra note 43, at 90.

82 See 2 Alan Meisel, The Right to Die 460 (2d ed. 1995).

83 Cruzan, 497 U.S. 261, 266 (1990) (Scalia, J., concurring). One may easily infer that Justice Scalia opposes a constitutionally protected right to assisted suicide from this concurring opinion. He questioned, are there “reasonable and humane limits that ought not to be exceeded in requiring an individual to preserve his own life? There obviously are, but they are not set forth in the Due Process Clause.” Id. at 300.

84 See Kass, supra note 44, at 41; Tucker & Burman, supra note 58, at 503-04; see also Meisel, supra note 82, at 460 (arguing that “’forgoings* of life-sustaining treatment can be accomplished either by withholding or by withdrawing, and withdrawing—for instance, the turning off of a ventilator—is no less of an act than a self-inflicted shooting, poisoning, wrist slitting, hanging, or even overdose of prescribed medication”).

85 But see Quill v. Vacco, 80 F.3d 716, 729 (2d Cir. 1996) (assuming that persons authorized by statute to withdraw life-sustaining treatment are similarly situated with terminally ill persons who wish to take a lethal dose of medication).

86 See Cruzan_y 497 U.S. at 279. But see Quill v. Vacco, 80 F.3d 716, 737 (2d Cir. 1996) (Calabresi, J., concurring) (concluding that despite its use of the term, the U.S. Supreme Court “did not merely ‘assume’ that a liberty interest in refusing life-sustaining medical treatment existed”).

87 See Larson, Edward J., Seeking Compassion in Dying: The Washington State Law Against Assisted Suicide, 18 Seattle U. L. Rev. 509, 511-12 (1995).Google ScholarPubMed

88 Cruzan, 497 U.S. at 280.

89 See Larson, supra note 87, at 512.

90 80 F.3d 716 (2d Cir. 1996).

91 See id. at 718. The Constitution states, in relevant part, that “[n]o state shall . . . deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” U.S. Const, amend. XIV, § 1.

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

93 See Quill, 80 F.3d at 727.

94 See id. at 723.

95 See id. at 724 (citing Bowers v. Hardwick, 478 U.S. 186, 192 (1986)).

96 Quill, 870 F. Supp. at 83.

97 Quill, 80 F.3d at 723 (quoting Moore v. City of East Cleveland, 431 U.S. 494, 503 (1977)).

98 Id. (quoting Palko v. Connecticut, 302 U.S. 319, 325-26 (1937)).

99 See id. at 724. Contrary to the court’s suggestion, history does not conclusively scorn suicide. For example, in 1789, David Hume wrote:

Hume, David, An Essay on Suicide, in David Hume: Selected Essays 315, 323 (Copley, Stephen & Edgar, Andrew eds., 1993).Google Scholar

100 See Quill, 80 F.3d at 724-25. However, because the court employed oversimplified analysis, we cannot learn much from the due process discussion in Quill. First, the court incorrectly assumed that only a state’s interference with a fundamental right may lead to a violation of the Due Process Clause. Cf. Compassion in Dying v. Washington, 79 F.3d 790, 803 (9th Cir. 1996) (noting that the Supreme Court’s “evolving doctrinal approach” has led it to speak of “substantive due process interests” rather than “fundamental due process rights” in recent years). In both Casey and Cruzan, for example, the Court balanced nonfundamental liberty interests against legitimate state interests. See Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833, 837 (1992); Cruzan v. Director, Missouri Dep’t of Health, 497 U.S. 261, 278-79 (1990). In Casey, the joint opinion used a test whereby an “undue burden exists, and therefore a provision of law is invalid, if its purpose or effect is to place substantial obstacles in the path of a woman seeking an abortion before the fetus attains viability.” Casey, 505 U.S. at 837.

The Court also overemphasized the importance of historical sanction in judging whether a right is fundamental. In Casey, the Court noted that making historical approval a prerequisite to constitutional protection would be

Casey, 505 U.S. at 847-48 (citing Loving v. Virginia, 388 U.S. 1, 12 (1967)).

101 Quill, 80 F.3d at 725; see U.S. Const, amend. XIV, § 1. The court concluded that people who could refuse lifesaving treatment and people who wished a physician’s aid in suicide were similarly situated. See Quill, 80 F.3d at 729. These two groups together constituted “competent persons who are in the final stages of fatal illness and wish to hasten their deaths.” Id. at 727.

102 See N.Y. Pub. Health Law §§ 2960-79 (McKinney 1993); Quill v. Koppell, 870 F. Supp. 78, 84 (S.D.N.Y. 1994); see also Cruzan, 497 U.S. at 278. Life-sustaining treatment includes “mechanical ventilation, renal dialysis, chemotherapy, antibiotics, and artificial nutrition and hydration.” Decisions, supra note 2, at 2229.

103 see Quill, 870 F. Supp. at 84.

104 See Quill, 80 F.3d at 725-27.

105 See id. at 726.

106 See id. (citing Hooper v. Bernalillo County Assessor, 472 U.S. 612, 618 (1985)).

107 See id. at 727.

108 Id.

109 Quill v. Koppell, 870 F. Supp. 78, 84 (S.D.N.Y. 1994).

110 See Quill, 80 F.3d at 729.

111 Id.

112 The AMA apparently supports this interpretation. See Decisions, supra note 2, at 2229. It defines treatment as “life-sustaining” when it “serves to prolong life without reversing the underlying medical condition.” Id.

113 See George J. Annas, The Promised End—Constitutional Aspects of Physician-Assisted Suicide, 335 New Eng. J. Med. 683, 684 (1996).

114 Id

115 79 F.3d 790 (9th Cir. 1996).

116 See id. at 794.

117 Wash. Rev. Code Ann. § 9A.36.060 (West 1991). Violating the statute constitutes a felony punishable by up to five years in prison, and a $10,000 fine. See id. §§ 9A.36.060(2), .20.020(1)(c).

The plaintiffs did not object to the portion of the statute that makes it unlawful for a person to “cause” someone to commit suicide. See Compassion in Dying, 79 F.3d at 797. They challenged the “or aids” portion of the statute both on its face and as applied to mentally competent, terminally ill adults who wish to hasten their deaths with the help of medication prescribed by their doctors. See id.

118 See Compassion in Dying v. Washington, 850 F. Supp. 1454, 1459-60 (W.D. Wash. 1994).

119 Id at 1460.

120 See id.

121 See id. at 1465.

122 Compassion in Dying v. Washington, 49 F.3d 586, 590 (9th Cir. 1995).

123 See id. at 590-91.

124 See id. at 594.

125 See Compassion in Dying v. Washington, 62 F.3d 299 (9th Cir. 1995) (granting a rehearing en banc); see also Compassion in Dying v. Washington, 79 F.3d 790, 798 (9th Cir. 1996) (commenting that the rehearing had been granted because of the case’s “extraordinary importance”).

126 Id. at 798-99. The liberty interest is not in “committing suicide,” but in “controlling the time and manner of one’s death,” because the interest encompasses a broader range of activities than suicide, including the act of refusing or terminating unwanted medical treatment. Id. at 802,

127 Id. at 800 (quoting Poe v. Ullman, 367 U.S. 497, 543 (1961) (Harlan, J., dissenting)). The court did not consider whether the interests involved rose to the level of “fundamental rights.” See id. at 803-04.

128 See id. at 809. The court noted generally that “while historical analysis plays a useful role in any attempt to determine whether a claimed right or liberty interest exists, earlier legislative or judicial recognition of the right or interest is not a sine qua non.” Id. at 805.

129 See id. at 810.

130 See id. at 813; see also Euthanasia Favored in Poll, N.Y. Times, Nov. 4, 1991, at A16.Google Scholar

131 Id. at 813-14 (quoting Casey, 505 U.S. at 851).

132 See id. at 814.

133 Cruzan, 497 U.S. at 278.

134 See Compassion in Dying, 79 F.3d at 815-16.

135 See id. at 816,

136 See id.

137 See id. at 804.

138 Id. According to the court, the strength of the liberty interest fluctuates depending on certain factors, especially the individual’s physical condition. See id. at 834. “When a mentally competent adult is terminally ill and wishes, free of any coercion, to hasten his death because his remaining days are an unmitigated torture, that person’s liberty interest is at its height.” Id.

139 See id. at 836-37.

140 See id. at 817.

141 See id. at 820.

142 Id.

143 See id.

144 See id. at 820-21.

145 Id. at 821. The court noted that the state’s interest in preventing suicide may not even be implicated in this case. See id. at 824. Notwithstanding the use of the term “physician-assisted suicide,” the court found no significant difference between the prescription of a lethal dose of medication and a patient’s decision to terminate life support or refuse food and hydration (actions which the state docs not consider to be “suicide”). See id.

146 See id at 826.

147 See id.

148 See id.

149 Id.

150 See id. at 827.

151 Id. But see Decisions, supra note 2, at 2232 (condemning “the gradual distortion of the role of medicine into something that starkly contrasts with the current vision of a profession dedicated to healing and comforting”).

152 See Compassion in Dying, 79 F.3d at 828; see also supra notes 50-51.

153 See Compassion in Dying, 79 F.3d at 832.

154 See id.

155 Id. at 833. The court noted some potential procedural safeguards, “without endorsing [their] constitutionality.” Id. Examples included witnesses to ensure voluntariness, short waiting periods to prevent impulsive decisions and psychological evaluations to guarantee that the patient does not suffer from treatable depression. See id.

156 Id. at 836-37.

157 Id. at 838.

158 See Lee v. Oregon, 891 F. Supp. 1429, 1437 (D. Or. 1995). Although the expected appeal of Lee was not at issue here, the court described the holding reached in that case as “highly irregular,” and noted that Chief Judge Hogan, author of the Lee opinion, had “clearly erred.” See Compassion in Dying, 79 F.3d at 838.

159 See Smith, Cheryl K., What About Legalized Assisted Suicide?, 8 Issues L. & Med. 503, 503 (1993).Google ScholarPubMed

160 See Gabel, Jody B., Release From Terminal Suffering?: The Impact of AIDS on Medically Assisted Suicide Legislation, 22 Fla. St. U. L. Rev. 369, 411 (1994)Google ScholarPubMed (citing the proposed amendment to Wash. rev. code § 70.122.060(1) (1991), reprinted in Office of the Secretary of The State of Washington, Voters Pamphlet, Initiative Measure 119, at 29).

161 See id. at 413.

162 See Annas, supra note 50, at 1240. “Euthanasia and assisted suicide differ in the degree of physician participation. Euthanasia entails a physician performing the immediate life-ending ac tion .... Assisted suicide occurs when a physician facilitates a patient’s death by providing the necessary means and/or information to enable the patient to perform the life-ending act.” Decisions, supra note 2, at 2229.

163 Gabel, supra note 160, at 413.

164 Death with Dignity Act, Or. Rev. Stat. ch. 127.805, § 2.01 (1995).

165 See id chs. 127.800-.897.

166 Id. ch. 127.800, § 1.01(12).

167 Id. ch. 127.810(1), §2.02(1).

168 see id. ch. 127.815, § 3.01.

169 See id. ch. 127.815, § 3.01(2)-(3); id. ch. 127.825, § 3.03. Critics of legalized assisted suicide argue that physicians would be unable to make accurate psychological evaluations. See Hendin, supra note 43, at 243. This might be critical, assuming that, “like other suicidal individuals, patients who desire an early death during a terminal illness [usually suffer] from a treatable mental illness, most commonly a depressive condition.” Id. at 242-43. According to Dr. Hendin, a “thorough psychiatric evaluation for the presence of a treatable disorder may literally make a life or death difference for patients who say they wish to die or to have a physician help them to do so.” Id. at 243. These observations do not justify the continued prohibition of assisted suicide. They do, however, counsel in favor of supplementing existing safeguards with mandatory psychiatric evaluation.

170 Drafters of Measure 16 expected its enactment in part because its scope was more limited than failed initiatives in California and Washington. See Annas, supra note 50, at 1241.

171 See Lee v. Oregon, 891 F. Supp. 1429, 1437 (D. Or. 1995).

172 Id.

173 See id.

174 Id.

175 See id. at 1438.

176 See id at 1437.

177 See City of Cleburne v. Cleburne Living Ctr., Inc., 473 U.S. 432, 439-41 (1985) (discussing standards of scrutiny employed by courts to determine state legislation’s validity under an equal protection challenge).

178 See City of Richmond v. J.A. Croson Co., 488 U.S. 469, 493-95 (1989) (holding that discrimination against any racial group merits strict scrutiny).

179 See Harper v. Virginia Bd. of Elections, 383 U.S. 663, 668, 670 (1966) (holding that poll taxes restrict the fundamental right to vote, and thus violate the equal protection clause).

180 See City of Cleburne, 473 U.S. at 440.

181 Lee, 891 F. Supp. at 1437; see Schweiker v. Wilson, 450 U.S. 221, 230 (1981) (stating that the Court has required legislation which classifies groups of people to be, at a minimum, rationally related to a legitimate governmental objective).

182 See Lee, 891 F. Supp, at 1431 n.2.

183 See id. at 1432.

184 Minnesota v. Clover Leaf Creamery Co., 449 U.S. 456, 464 (1981) (quoting United States v. Carolene Products Co., 304 U.S. 144, 153-54 (1938)).

185 It is irrelevant for the purposes of constitutional analysis that the public enacted Measure 16 by referendum, as opposed to traditional legislative process. See Citizens Against Rent Control v. City of Berkeley, 454 U.S. 290, 295 (1981).

186 Lee, 891 F. Supp. at 1434. Measure 16 would limit the right to receive a lethal dose of medication to those with fewer than six months to live. See Death with Dignity Act, Or. Rev. Stat. ch. 127.800, § 1.01; id. ch. 127.805, § 2.01. Some of the Measure’s proponents would eventually extend the privilege to all consenting adults, a fact that did not escape the court’s notice. See Lee, 891 F. Supp. at 1432. Judge Hogan, while purporting to analyze the relevant constitutional issues in the context of the much smaller class defined in the statute, seemed concerned about a slippery slope:

Id. at 1432 n.3. Although such considerations may concern the court, potential future classifications should not have interfered with its equal protection analysis of the classification as drawn.

187 See id. at 1434-37 (noting that the act furthers asserted state interests, but holding equal protection violation based on “severely overinclusive class”).

188 See id. at 1434.

189 See id. Consideration of Measure 16 as denying a right to a particular group is suspicious, because the law was obviously intended to grant an additional right to that class. Equal protection analysis based on the classification as obviously intended by the electorate (granting a right to competent, terminally ill people) shows more than a mere rational relation to the goal of preventing suffering. Fifty-two percent of Oregon voters believed in the strength of the connection. See Caplan, supra note ]11, at 3.

190 See id. at 1433-34; see also Or. Rev. Stat. § 163.117 (1995) (providing “aiding commission of suicide” as a defense to murder, but not to manslaughter or other crimes).

191 See Lee, 891 F. Supp. at 1434. Judge Hogan seems to premise his ruling on the idea that laws banning assisted suicide actually prevent people from committing suicide: “Measure 16 singles out terminally ill persons who want to commit suicide and excludes them from the protection of Oregon laws that apply to others.” Id. at 1438. However, approximately 15 states do not criminalize assisted suicide, seemingly with negligible impact. See Meisel, supra note 82, at 478.

192 See Lee, 891 F. Supp. at 1438. In Compassion in Dying v. Washington, the Ninth Circuit rejected Judge Hogan’s reasoning on this point: “The benefit we conclude the terminally ill are entitled to receive in this case—the right to physician-assisted suicide—is precisely what Judge Hogan determined to be a burden and thus unlawful. In short, Lee treats a burden as a benefit and a benefit as a burden. In doing so, Judge Hogan clearly erred.” 79 F.3d 790, 838 (9th Cir. 1996).

193 Lee, 891 F. Supp. at 1434.

194 See Penrose, Mary M., Assisted Suicide: A Tough Pill to Swallow, 20 Pepp. L. Rev. 689, 701 (1993).Google Scholar

195 See id. at 696-700.

196 Exodus 20:13. “Although most interpreters agree that the Sixth Commandment apparently is not a direct mandate against suicide, the implication is that suicide is analogous to homicide, and therefore is similarly covered by the Sixth Commandment’s mandate against killing.” Penrose, supra note 194, at 696 n.4I. Both Judaism and Islam parallel ideology of the Catholic Church, rejecting suicide as direct taking of human life. See Mangini, supra note 36, at 736-37.

197 See generally Penrose, supra note 194, at 696 (noting that the religious influence of the Catholic Church “is certain to pervade the assisted suicide debate in a similar manner” to that of the abortion debate). These laws stem from the idea that “[e]veryone has a moral duty to respect the sanctity of human life, that is, to refrain from any act that can reasonably be expected to cause another human being’s death.” LEISER, BURTON M., Liberty, Justice, and Morals: Contemporary Value Conflicts 107 (2d ed. 1979)Google Scholar (discussing abortion laws).

198 Lee, 891 F. Supp. at 1434.

199 See id.

200 See id. at 1433.

201 See id. at 1434.

202 See id. at 1433.

203 See id. at 1434. The court’s references to “incompetent” individuals parallel Measure 16’s use of the word “incapable,” meaning that when “in the opinion of the court or in the opinion of the patient’s attending physician or consulting physician, a patient lacks the ability to make and communicate health care decisions to health care providers, including communication through persons familiar with the patient’s manner of communicating if those persons are available.” Death with Dignity Act, Or. Rev. Stat. ch. 127.800, § 1.01(6).

204 Or. Rev. Stat. ch. 127.810, § 2.02(1).

205 Id. ch. 127.815, §3.01(1).

206 Id. §3.01(3).

207 See id. §3.01(4).

208 Id. ch. 127.825, § 3.03.

209 Lee v. Oregon, 891 F. Supp. 1429, 1434 (D. Or. 1995).

210 See id. at 1435.

211 Id.

212 See id. (noting that “seriously ill people commonly suffer from alienation, guilt and feelings of unworthiness”).

213 See Or. Rev. Stat. ch. 127.825, § 3.03.

214 See Lee, 891 F. Supp. at 1437.

215 See id.

216 See id. The court only states that “Measure 16 provides a means to commit suicide to a severely overinclusive class who may be competent, incompetent, unduly influenced or abused by others.” Id.

217 440 U.S. 568, 593 (1979); see also FCC v. Beach Communications, Inc., 113 S. Ct. 2096, 2101 (1993) (holding that a classification “must be upheld against an equal protection challenge if there is any reasonably conceivable state of facts that could provide a rational basis for the classification”); Dandridgc v. Williams, 397 U.S. 471, 485 (1970) (holding that state legislation “does not violate the Equal Protection Clause merely because the classifications [it makes] are imperfect”).

218 See Lee, 891 F. Supp. at 1438 (suggesting that one of the problems with Measure 16 is its inability to limit “rational suicide” to the hard cases). “The suffering of some competent, terminally ill persons gives rise to compassionate arguments.” Id.

219 Id. at 1433.

220 A response to this argument is that the reasons for Measure 16 do not apply equally to all citizens. Principal interests cited in creating an exception for terminally ill patients under Measure 16 include avoiding “unnecessary pain and suffering,” and protecting “the terminally ill and their loved ones from financial hardships.” Id. at 1434. Certainly these interests are particular to the class of persons the measure intended to help.

221 Consider an editorial written shortly after Judge Hogan’s decision:

Dying and Discrimination: Death with Dignity Case Misconstrues the Issue, Peoria J. Star, Aug. 15, 1995, at A4. In Compassion in Dying v. Washington, 49 F.3d 586, 591 (9th Cir. 1995), rev ‘d, 79 F.3d 790 (9th Cir. 1996), the court derided the possibility:

Id.

222 See Lee, 891 F. Supp. at 1437.

223 Fundamental rights are those “implicit in the concept of ordered liberty” or “deeply rooted in this Nation’s history and tradition.” Bowers v. Hardwick, 478 U.S. 186, 191-92 (1986).

224 See, e.g., Kelley v. Johnson, 425 U.S. 238, 248 (1976) (holding that regulations limiting policemen’s hair length were reasonable).

225 See supra text accompanying notes 185-92.

226 See, e.g., Kelley, 425 U.S. at 245 (noting that if state regulations survive challenges based on the “explicit language of the First Amendment, there is surely even more room for restrictive regulations of state employees where the claim implicates only the more general contours of the substantive liberty interest protected by the Fourteenth Amendment”).

227 Graham, Kathy T., Last Rights: Oregon’s New Death with Dignity Act, 31 Willamette L. Rev. 601, 628 (1995).Google ScholarPubMed

228 See Lee v. Oregon, 891 F. Supp. 1429, 1435-37 (D. Or. 1995).

229 But see Graham, supra note 227, at 630 (arguing that if “Oregon voters want to protect these rights, individual plaintiffs should not be allowed to subvert them”).

230 See Lee, 891 F. Supp. at 1435; see also Or. Rev. Stat. § 426.070(5)(b)(A) (1995).

231 See Lee, 891 F. Supp. at 1434. It is not entirely clear in what way a treating physician better serves the goal of assessing a patient’s competency than the attending and consulting physicians under Measure 16. Presumably, the treating physician would be more familiar with the patient’s condition, and should therefore have some insight into how to judge her decision to die.

232 Id. “With death at issue under Measure 16, the court is unable to conceive of a set of facts under which it would be rational to not require mental and social evaluations by appropriately trained professionals.” Id. at 1436.

233 See id. at 1436-37.

234 Death with Dignity Act, Or. Rev. Stat. § 127.885.

235 Lee, 891 F. Supp. at 1437.

236 See id.

237 See id.

238 See id.

239 Id.

240 The argument that Measure 16 denies terminally ill patients equal protection would dissipate if Oregon repealed its statute outlawing assisted suicide. In the absence of that statute, there could be no force to the argument that Measure 16 denies to terminally ill people the same protection afforded to other citizens. This solution appears unlikely due to the historical support of such laws.

241 Meisel, supra note 82, at 510.

242 See supra Part III.

243 See, e.g., Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833, 851 (1992) (noting that the Court’s precedents “have respected the private realm of family life which the state cannot enter,” and that “choices central to personal dignity and autonomy, are central to the liberty protected by the Fourteenth Amendment”).

244 See Cruzan v. Director, Missouri Dep’t of Health, 497 U.S. 261, 280 (1990) (stating that a state “is [not] required to remain neutral in the face of an informed and voluntary decision by a physically able adult to starve to death”); see also Casey, 505 U.S. at 851 (“Beliefs about these matters could not define the attributes of personhood were they formed under compulsion of the state.”).

245 Lee v. Oregon, 891 F. Supp. 1429, 1437 (D. Or. 1995).

246 Compassion in Dying v. Washington, 79 FJd 790, 838 nn.138-39 (9th Cir. 1996).

247 See Or. Rev. Stat. § 127.805 (1995).

248 See id. § 163.125(1)(b).

249 See Schweiker v. Wilson, 450 U.S. 221, 238-39 (1981) (holding that Congress could make a distinction between residents in public institutions receiving Medicaid funds for their care and residents in such institutions not receiving such funds); New Orleans v. Dukes, 427 U.S. 297, 303 (1976) (holding that unless a classification tramples on “fundamental personal” rights or is drawn on “inherently suspect distinctions such as race, religion, or alienage,” the Court will presume the constitutionality of the statutory discrimination and “require only that the classification challenged be rationally related to a legitimate state interest”).

250 See Lee, 891 F. Supp. at 1434.

251 See id. (noting that the procedures designed to differentiate between competent and incompetent persons are insufficient).