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Stemming the Tide: Assisted Suicide and the Constitution

Published online by Cambridge University Press:  01 January 2021

Carl H. Coleman  and
Tracy E. Miller
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Extract

On November 8, 1994, Oregon became the first state in the nation to legalize assisted suicide. Passage of Proposition 16 was a milestone in the campaign to make assisted suicide a legal option. The culmination of years of effort, the Oregon vote followed on the heels of failed referenda in California and Washington, and other unsuccessful attempts to enact state laws guaranteeing the right to suicide assistance. Indeed, in 1993, four states passed laws strengthening or clarifying their ban against assisted suicide. No doubt, Proposition 16 is likely to renew the effort to legalize assisted suicide at the state level.

The battle over assisted suicide is also unfolding in the courts. Litigation challenging Proposition 16 on the grounds that it violates the equal protection clause is ongoing in Oregon. More significantly, three cases, two in federal courts and one in Michigan state court, have been brought to establish assisted suicide as a constitutionally protected right.

Type
Article
Information
Journal of Law, Medicine & Ethics , Volume 23 , Issue 4 , Winter 1995 , pp. 389 - 397
Copyright
Copyright © American Society of Law, Medicine and Ethics 1995

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References

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).Google Scholar
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.Google Scholar
Compassion in Dying v. State of Washington, 850 F. Supp. 1454 (W.D. Wash. 1994).Google Scholar
Compassion in Dying v. State of Washington, 49 F.3d 586, reh'g en banc granted, 62 F.3d 299 (9th Cir. 1995).Google Scholar
Quill v. Koppell, 870 F. Supp. 78 (S.D.N.Y. 1994).Google Scholar
People v. Kevorkian, 527 N.W.2d 714 (Mich. 1994), cert. denied, 115 S. Ct. 1795 (1995).Google Scholar
Cruzan v. Director, Missouri Dep't of Health, 497 U.S. 261 (1990).Google Scholar
See, for example, Austin v, Michigan State Chamber of Commerce, 494 U.S. 652, 666 (1990).Google Scholar
Youngberg v. Romeo, 457 U.S. 307, 320 (1982).Google Scholar
See, for example, Concrete Pipe & Products of California, Inc. v. Construction Laborers Pension Trust, 113 S. Ct. 2264 (1993).Google Scholar
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.”).Google Scholar
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).Google Scholar
Note, “Physician-Assisted Suicide and the Right to Die with Assistance,” Harvard Law Review, 105 (1992): At 2021.Google Scholar
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.”).CrossRefGoogle Scholar
Note, supra note 13, at 2028–29.Google Scholar
Compassion in Dying, 850 F. Supp. at 1461.Google Scholar
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).Google Scholar
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).Google Scholar
See, for example, Colyer, 660 P.2d at 743.Google Scholar
Cruzan, 497 U.S. at 280.Google Scholar
Quill, 870 F. Supp. at 83.Google Scholar
Compassion in Dying, 49 F.3d at 594.Google Scholar
Compassion in Dying, 850 F. Supp. at 1459–60.Google Scholar
Planned Parenthood v. Casey, 112 S. Ct. 2791 (1992).Google Scholar
850 F. Supp. at 1460.Google Scholar
Capron, A.M., “Easing the Passing,” Hastings Center Report, 24, no. 4 (1994): At 25.Google Scholar
Bowers v. Hardwick, 478 U.S. 186 (1986).Google Scholar
Michael H. v. Gerald D., 491 U.S. 110 (1989) (plurality opinion).Google Scholar
Marzen, T.J. et al., “Suicide: A Constitutional Right?,” Duquesne Law Review, 24 (1985): At 76.Google Scholar
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.CrossRefGoogle Scholar
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.Google Scholar
Kevorkian, 527 N.W.2d at 733.Google Scholar
Compassion in Dying, 49 F.3d at 590.Google Scholar
See, for example, Colyer, 660 P.2d at 743.Google Scholar
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).Google Scholar
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.Google Scholar
Sedler, R., “The Constitution and Hastening Inevitable Death,” Hastings Center Report, 23, no. 5 (1993): 22–25.Google Scholar
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.CrossRefGoogle Scholar
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.Google Scholar
Jacox, A. et al., Management of Cancer Pain, Clinical Practice Guideline No. 9 (Rockville: DHHS, AHCPR No. 94-0592, Mar. 1994): At 8; and Solomon, M.Z. et al., “Decisions Near the End of Life: Professional Views on Life-Sustaining Treatments,” American Journal of Public Health, 83 (1993): At 18–19.Google Scholar
NIH Consensus Development Panel on Depression in Late Life, “Diagnosis and Treatment of Depression in Late Life,” JAMA, 268 (1992): 1018–24.CrossRefGoogle Scholar
New York State Task Force, supra note 36, at 43–47.Google Scholar
Cleeland, C.S. et al., “Pain and its Treatment in Outpatients with Metastatic Cancer,” N. Engl. J. Med., 330 (1994): 592–96.CrossRefGoogle Scholar
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. et al., “Access to Medical Care for Black and White Americans,” JAMA, 261 (1989): 278–81.Google Scholar
Rodwin, M.A., “Conflicts in Managed Care,” N. Engl. J. Med., 332 (1995): 604–07.CrossRefGoogle Scholar
Compassion in Dying, 49 F.3d at 592.Google Scholar
Portenoy, R.K. et al., “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).Google Scholar
New York State Task Force, supra note 36, at 123.Google Scholar
Kass, L., “Why Doctors Must Not Kill,” Commonweal, 118, no. 14, supp. (1991): At 473.Google Scholar
49 F.3d at 592.Google Scholar
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.CrossRefGoogle Scholar
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.CrossRefGoogle Scholar
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.”).Google Scholar
United States v. Lee, 455 U.S. 252, 259 (1982).Google Scholar
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.Google Scholar
Conroy, 486 A.2d at 1209.Google Scholar
Fosmire v. Nicoleau, 551 N.Y.S.2d 876 (1990).Google Scholar
Compassion in Dying, 49 F.3d at 591.Google Scholar
Quill, T.E., “The Care of Last Resort,” New York Times, July 23, 1994, at A19.Google Scholar
See generally Hendin, H., “Seduced by Death: Doctors, Patients, and the Dutch Cure,” Issues in Law & Medicine, 10 (1994): 123–68.Google Scholar
Tribe, L., American Constitutional Law (New York: Foundation Press, 2d ed., 1988): § 15–11, at 1370.Google Scholar
Cruzan, 497 U.S. at 261 (Brennan, J., dissenting).Google Scholar
Lee, 891 F. Supp. at 1429.Google Scholar
Id. at 1437.Google Scholar