Are Laws Against Assisted Suicide Unconstitutional? Yale Kamisar University of Michigan Law School, Ykamisar@Umich.Edu

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1993 Are Laws against Assisted Suicide Unconstitutional? Yale Kamisar University of Michigan Law School, [email protected]

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Recommended Citation Kamisar, Yale. "Are Laws against Assisted Suicide Unconstitutional?" Hastings Center Rep. 23, no. 3 (1993): 32-41.

This Article is brought to you for free and open access by the Faculty Scholarship at University of Michigan Law School Scholarship Repository. It has been accepted for inclusion in Articles by an authorized administrator of University of Michigan Law School Scholarship Repository. For more information, please contact [email protected]. Hastings Center Report, May-June 1993

n 15 Februaryof this year, shortly after the number of people Dr. Jack Kevorkian had helped to commit sui- Are cide swelled to fifteen, the Michigan Laws against Assisted legislature passed a law, effective that very day, making assisted suicide a Suicide Unconstitutional? felony punishable by up to four years in prison. The law, which is automat- ically repealed six months after a byYale Kamisar newly established commission on death and dying recommends per- manent legislation, prohibits anyone with knowledge that another person intends to commit suicide from "in- The reluctant to find constitutional the Supreme Court, rights tentionally providing physical in areas marked divisive social and debate, is not means" by which that other person by legal does so or from "intentionallypartic- likely to constitutionalize a right to assisted suicide. The ipat[ing] in a physical act" by which Court should cleave to the tradition of discouraging suicide she does so.1 and criminalizing its assistance. A two-thirdsmajority of each house was needed to give the new Michigan law immediate effect, but that re- quirement was easily met. The gover- nor applauded the legislature and assisted suicide by statute and as approvalof these acts or at least as signed the law the same day. But this another ten or twelve make some recognitionthat self-determination or is not the end of the story. A week types of assisted suicide a form of autonomy extends this far-namely, later, the American Civil Liberties murder or manslaughter,2 the Su- that taking one's life is a valid applica- Union of Michigan brought a lawsuit preme Court is likely to address the tion or aspect of individual self-deter- on behalf of two cancer patients and question in some case from some mination. If this is what he means, he several health care professionals who state, whether Michigan or another, is quite mistaken. specialize in the care of the termi- in the near future. As the most comprehensive and nally ill, attacking the law's constitu- In this article I shall only discuss most heavily documented law review tionality. The essence of the chal- federal constitutional arguments for article ever written on the subject lenge is that insofar as the law prohib- invalidating laws against suicide. I makes clear, abolition of such "pun- its a health professional, family mem- shall also discuss various reasons why ishments" as ignominious burial for ber, or friend from assisting a com- I believe these arguments will (and suicide and then the decriminaliza- petent, terminally ill person who should) fail. tion of both suicide and attempted wishes to hasten her death, the law suicide did not come about because violates the due process clauses of the Is There a "Right" to Commit suicide was deemed a "human right" state and federal constitutions and Suicide? or even because it was no longer con- the "Right to Privacy Guarantee" of sidered reprehensible. These changes the state constitution. So far as I know, no state law makes occurred, rather, because punish- If the Michigan Supreme Court either suicide or attempted suicide a ment was seen as unfair to innocent overturns the prohibition against as- crime. Why is this so? And what fol- relatives of the suicide and because sisted suicide on state constitutional lows from this? those who committed or attempted grounds, this particular lawsuit will According to Dan Brock, who sup- to commit the act were thought to come to an end. If, however,as I think ports both physician-assisted suicide be prompted by mental illness.4 likely, the state supreme court up- and voluntary active euthanasia, the Some of this thinking is reflected holds the prohibition, the U.S. Su- fact "that suicide or attempted sui- in the comments to the American preme Court may decide to review cide is no longer a criminal offense in Law Institute's Model Penal Code. the matter. Since approximately virtually all states indicates an accept- The code does criminalize aiding or twenty-five states expressly prohibit ance of individual self-determination soliciting another to commit suicide, in the taking of one's own life but not suicide itself or attempted sui- analogous to that required for volun- cide. not? "There is a certain YaleKamisar is ClarenceDarrow Distin- Why tary active euthanasia." I am not sure moral extravagance in imposing guished at TheUniver- UniversityProfessor what Professor Brock means by "ac- criminal punishment on a Law School,Ann Arbor person sityof Michigan ceptance"; it is an ambiguous term. who has sought his own self-destruc- In context, however, he seems to be tion and YaleKamisar, "Are Laws against Assisted Suicide ... who more properly re- Unconstitutional?"Hastings CenterReport23, no. 3 viewing the fact that we no longer quires medical or psychiatric atten- (1993): 3241. punish suicide or attempted suicide tion."5 32

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Sympathy and pity for the individ- quickest way to refute the belief not a There is no absolute or general ual who attempts suicide "emphati- few may hold that the reason for the "right to die." The only right or lib- cally did not mean approval of the criminal prohibition against assisted erty that the KarenAnn Quinlancase act." From colonial days through at suicide falls into Holmes's category and subsequent so-called "right to least the 1970s, "the predominant is to point to the position taken by the die" rulings have established is the attitude of society and the law has code. Its final "OfficialDraft" was the right under certain circumstances to been one of opposition to suicide."6 product of many years of research, be disconnected from artificial life The Model Penal Code's judgment deliberation, drafting, and revising by support systems or, as many have that "there is no form of criminal the most eminent criminal law called it, the right to die a natural punishment that is acceptable for a scholars of the 1950s and 60s, led by death. And the new Michigan ban completed suicide and that criminal Herbert Wechsler of Columbia Uni- against assisted suicide recognizes punishment is singularly ineffica- versity and Louis B. Schwartz of the that right by explicitly excluding cious to deter attempts to commit sui- University of Pennsylvania. To quote "withholdingor withdrawingmedical cide" (p. 94) does not mean that a leading scholar of the present day, treatment" from its coverage. (It also there is a "right"to commit the act. As the code "has become the principal exempts "prescribing, dispensing or Leon Kasshas pointed out, the capac- text in criminal law teaching, the administering" medication or treat- ity to take one's life-"I have inclina- point of departure for criminal law ment designed "torelieve pain or dis- tion, means, reasons, opportunity, scholarship, and the greatest single comfort and not to cause death, even and you cannot stop me, and it is not influence on the many new state if the medication or procedure may against the law"-does not establish codes that have followed in its wake."9 hasten or increase the risk of death.") the right to do so. Nor does it mean The Model Code's reporters con- In the 1970s, the Quinlan case that one has "ajustified claim against sidered the argument that the crimi- brought the "right to die" issue to others that they act in a fitting man- nality of assisted suicide should turn national prominence and set the ner."7As a practical matter, at least so upon "the presence of a selfish mo- tone for the developments in law and long as they do not resort to physical tive" (a position supported by one of bioethics that followed. But the Quin- violence, parents are "free" to treat its special consultants, England's lan court specifically distinguished their children unkindly, even cruelly. Glanville Williams), but concluded between committing or assisting in a But few, if any, would say that a that "the wiser course is to maintain suicide and what it called "the ending mother or father has a "right"to be a the prohibition and rely on mitiga- of artificiallife support systems"-the bad parent. tion in the sentence when the ground only issue presented.12 Society can do something about for it appears."'0With the stimulus of As one of the leading commenta- those who aid anotherto commit sui- the Model Code, in the next decade tors in this field, Rutgers Law cide-and it has. Throughout our and a half, eight states passed new School's Norman Cantor, recently history we have directed the force of laws specifically prohibiting assisted observed: "The assertion that rejec- the criminal law against aiding or suicide and eleven other jurisdictions tion of life-saving medical treatment assisting suicide. The commentary to revised their existing statutes." by competent patients constitutes the Model Penal Code notes that the suicide has been uniformly re- fact that penal sanctions will not Does the "Right to Die" Include jected-usually based on a distinc- deter the suicide itself tion between nature take its the Right to Assisted Suicide? letting does not mean that the course and initiating external death- criminal As a the to law is rallying cry, "right die" causing agents."'3 equally powerless to in- is hard to beat. But it is much easier fluence the behavior of those who The distinction between euthanasia to chant a than to it to I would aid or induce another to slogan apply (or, believe, assisted suicide as well) situations. Most would con- and die" is elucidated in The take his own life. Moreover, in specific "letting sider the refusal of lifesaving medi- TroubledDream a soon-to-be- principle it would seem that the of Life, cal procedures under certain cir- book Daniel Callahan. interests in the sanctityof life that published by cumstances (such as terminal illness "As a of nature," observes Dr. are represented by the criminal reality and severe pain) an apt illustration Callahan, and die are homicide laws are threatened by "killing letting of the "right to die." But the term different.... There must be one who expresses a willingness to causally has also been used loosely and an fatal if allow- participate in taking the life of underlying pathology broadly to embrace such claims as to die is even another, even though the act may ing possible. Killing, by the right to another's help in com- its own fatal be accomplished with the con- contrast, provides mitting suicide and the right to but the action of sent, or at the request, of the sui- pathology. Nothing authorize another to engage in active the doctor the lethal cide victim (p. 100). giving injection euthanasia. is necessary to bring about death."'14 Another word about the Model Many proponents of the "right to Since the reasons usually advanced Penal Code. In the memorable dic- die" are quick to point out that the to distinguish persons terminating tum of Oliver Wendell Holmes, "It is "sanctityof life" is not an absolute or life support from "ordinary"suicides revolting to have no better reason for unqualified value (and they are do not strikeJeb Rubenfeld as "alto- a rule of law than that so it was laid right), but they are slow to realize that gether persuasive" (nor me either), down in the time of Henry IV."8The the same is true of the "rightto die." Professor Rubenfeld has suggested 33

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another answer to "this painful criminal penalties on one who assists signals the reluctance of the High riddle": another to commit suicide."'16 Court to "constitutionalize"an area If a of the Court marked divisive social and For right-to-die patients, being majority Supreme by legal forced to live is in fact to be forced meant to suggest that laws against debate and its inclination to defer assisted suicide are instead to the states' in into a all-consuming, constitutionally judgments particular, it chose a of this difficult field.'8 A Court that re- totally dependent, and indeed suspect, strange way standardizedlife: the life of doing so. fused to "constitutionalize"a "rightto rigidly The chief "assumedfor die" broad to the one confined to a hospital bed, justice pur- enough uphold of this case" that a of the Cruzan is attached to medical machinery, poses competent claims family hardly and tended to medical person does have "a constitutionally likely to "constitutionalize"a right to by pro- to refuse assisted suicide. fessionals. It is a life almost totally protected right lifesaving hydration and nutrition." But he de- occupied.... clined to characterize it as a "fun- Justice Scalia's Opinion In contrast, the "ordinary"suicide damental a that suffers no such total right," designation occupation a state to offer a We should not forget that there was of his life or affirmativeuse of his requires compelling for a restriction (a onejustice in the Cruzancase who did An avenue of is fore- justification right's body. escape test the state can rarely satisfy). He equate the termination of life sup- closed to him [but the prohibi- called the right instead a Fourteenth port with "ordinary" suicide-An- tion of does not, as a rule, suicide] Amendment liberty interest: "Al- tonin Scalia. Although his lone con- direct lives into a particular,nar- state courts have held was more or less confined course." though many curring opinion ig- rowly that a right to refuse treatment is nored by the other justices, it should This is a thoughtful answer and an encompassed by a generalized con- not go unnoticed. interesting one. But still more inter- stitutional right of privacy, we have Justice Scalia maintained that for esting, I believe, is that this commen- never so held. We believe this issue is constitutional purposes "there is tator, who has a strong commitment more properly analyzed in terms of a nothing distinctive about accepting to the right to privacyand who usually Fourteenth Amendment liberty in- death through the refusal of 'medical interprets it expansively, evidently terest." treatment,' as opposed to accepting it feels a deep need (as I do) to draw a "By avoiding 'fundamental right' through the refusal of [natural] food, boundary somehow between the language," comments John Robert- or through the failure to shut off the withholding or withdrawalof life-sus- son, "the Court may implicitly allow engine and get out of the car after taining medical treatment and what states to restrict the 'liberty interest' parking in one's garage after work." he calls "'ordinary'suicide." upon a lesser showing of need than it As he viewed the case, the request of The one "right to die" case that would require if that interest were Nancy Cruzan's parents to terminate rivals Quinlan for prominence is the characterized as a fundamental their daughter's artificialfeeding and 1990 Nancy Beth Cruzandecision, the right." Perhaps "anyreasonable state hydration was, in effect, the assertion only case on death, dying, and the interest" would justify state interfer- of a "rightto suicide." "right of privacy"ever decided by the ence with that liberty "or at least one But Justice Scalia is well aware that U.S. Supreme Court. As did Quinlan, which did not impose an 'undue "on the question you ask depends the the Cruzancase involved the right to burden.'"'17 answer you get." A principal reason, end artificial life support, and it too Of course, the Court did not sug- surely, why he framed the question provides no comfort to proponents gest that one has even so much as "a the way he did was his confidence of a constitutional right to assisted Fourteenth Amendment liberty in- that there was no way a majority of suicide. terest" in assisted suicide, and I can- the Court would recognize a constitu- The Cruzan Court sustained a not believe that it will do so in the tional right to commit suicide. And state's power to keep alive, over her foreseeable future. If I am right, a nothing any of the other eight jus- family's objections, an incompetent Court assessing the constitutionality tices said suggests that Scalia's confi- patient who had not left clear in- of a ban against assisted suicide dence was unfounded. structions for ending life-sustaining would give great deference to the In fact, the other justices did not treatment. In the course of reject- state legislature; if it furthered some say anything about a "right to sui- ing the efforts of Ms. Cruzan's coherent conception of the public cide." None of them disputed Scalia's parents to terminate her artificial good, that would probably suffice. point "that American law has always feeding, Chief Justice Rehnquist, The Cruzan case is hardly the accorded the State the power to pre- who spoke for five members of the Court's last word on death, dying, ter- vent, by force if necessary, suicide." Court, pointed out that a state has mination of life support, assisted sui- Nor did any of them disagree that an undeniable interest in the pro- cide, and euthanasia. The principles "there is no significant support for tection and preservation of human lurking in this area will be brought the claim that a right to suicide is so life-even the life of a person in a into sharper focus only by new prod- rooted in our tradition that it may be persistent vegetative state. The chief ding of the facts of new cases and by deemed 'fundamental' or 'implicit in justice supported this assertion by taking a fresh look, each time, at the the concept of ordered liberty."'As noting that "the majority of states in overall problem. If Cruzan demon- Louis Seidman remarks, the Cruzan this country have laws imposing strates anything, however, I think it dissenters "carefullyavoid any claim 34

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that state suicide statutes are uncon- the knife's edge between suicide and "it puts the physician in a very power- stitutional-a reticence that Justice murder,'"and suicide has sometimes ful position," whereas in the case of Scalia powerfully exploits in his con- been called "self-administeredeutha- doctor-assisted suicide "the balance curring opinion."9 This is a reti- nasia.'21 of power between doctor and patient cence, I might add, that does not Doctor-assisted suicide is not quite is more nearly equal."23 bode well for proponents of a consti- active voluntary euthanasia for, un- I find this reasoning more con- tutional right to assisted suicide. like euthanasia, the final act, the one clusory than explanatory. Dr. Quill Although none of Justice Scalia's that brings on death, is performed by would require many safeguards for colleagues responded in so many words to his argument that the termination of lifesaving medical treatment constitutes suicide, they responded nevertheless. They all Voluntaryeuthanasia would receive very serious consid- framed the question in terms of a erationonce assisted suicide were legalized or as soon right to refuse or to be free from "un- as the SupremeCourt established a constitutionalright wanted medical treatment" or, more to commit"rational" suicide. specifically,"unwanted artificial nutrition and hydration." As a matterof logic,I think there is a good deal to be said for analogizing a patient's termination of life-sustain- the patient herself, not her doctor. doctor-assisted suicide (the patient ing medical treatment to "ordinary" But suppose that a person is unable to must freely, clearly, and repeatedly suicide. But law is not entirely a syllo- swallow the barbiturates that will ask to die; her judgment must not be gism. bring about death or lacks the physi- distorted; the physician must make It may be helpful to view the Cruzan cal capacity to trigger a suicide ma- sure that the patient's suffering and case as involving two competing tradi- chine? If the right to control the time request are not the product of inade- tions.20 One is the common-law right and manner of one's death-the quate comfort care). If, as he believes, to refuse medical treatment, even right to shape one's death in the most these safeguards would greatly re- lifesaving surgery--in the language humane and dignified manner one duce the risk of abuse and render the of the Court, "the logical corollary of chooses-is well founded, how can it balance of power between doctor and the doctrine of informed consent," a be denied to someone simply because patient relatively equal, why would doctrine "firmlyentrenched in Amer- she is unable to perform the final act they not achieve the same results for ican tort law,"is the right not to con- by herself? Although there is a "me- voluntary euthanasia? Conversely, if, sent, that is, to reject treatment. The chanical"distinction between assisted even when all the safeguards Quill other tradition, which has continued suicide and euthanasia, is it not a dis- proposes are in place, it would still be to exist alongside the first one, is the tinction without a difference? imprudent to legalize active volun- antisuicide tradition, as evidenced by Yes, answered the late Joseph tary euthanasia, why is it safe to sanc- society's discouragement of suicide Fletcher, who advocated active eu- tion assisted suicide? and attempted suicide and by the thanasia for some fifty years. As he Quill recognizes that "access to many criminal laws against assisted viewed the matter, "It is impossible to medical care in the United States is suicide. separate [active voluntary euthana- too inequitable and many doctor- In Cruzan a majority, perhaps as sia] from suicide; it is indeed, a form patient relationships too impersonal many as eight justices, evidently de- of suicide" and the case for active vol- to tolerate the risks of condoning ac- cided that the termination of artifi- untary euthanasia "depends upon tive voluntary euthanasia" (p. 160). cial nutrition and hydration was more the case for the righteousness of sui- But why can't the very same thing be consistent with the rationale of the cide." James Rachels, author of a said about tolerating the risks of con- cases upholding the right to refuse famous assault on the distinction be- doning assisted suicide? treatment; so far as we can tell, only tween "killing"and "letting die," sim- I find it difficult to avoid the con- Justice Scalia believed it implicated ilarly maintains that "the permissi- clusion that Dr. Quill's position is the concerns underlying the antisui- bility of euthanasia follows from the colored by the fact, as he notes, that cide tradition. permissibilityof suicide-a result that "unlike assisted suicide, where the probably will not surprise any legal implications have yet to be fully Assisted Suicide vs. Active thoughtful person."22 clarified, euthanasia is illegal in all That but it is a result some states in the United States and Voluntary Euthanasia may be, likely thoughtful persons have strongly re- to be vigorously prosecuted" (p. 142). The line between doctor-assisted sisted. Thus, in his new book, Dr. Dr. Quill and I disagree about a num- suicide and physician-administered Timothy Quill comes out in favor of ber of things. But I venture to say we voluntary euthanasia is a fine one physician-assistedsuicide but balks at are in agreement on one: the uni- that is often blurred. Voluntary eu- active voluntary euthanasia. He does form ban against active euthanasia is thanasia "has been variously de- not support euthanasia because of not going to be struck down on the scribed as 'assisted suicide' or 'within the "potentialfor abuse"and because ground that it violates the "right to 35

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die." Therefore, a proponent of the Death," a program shown on most Of course, it is good advocacy to right to assisted suicide is under- PBS stations about the time this ar- frame the issue in terms of the rights standably likely to put as much dis- ticle was going to press. of the "dying"or "terminallyill," but tance as possible between that con- Although the program was billed as what reason (other than those of tac- cept and euthanasia. a "debate about euthanasia," it soon tics) can be advanced for this posi- Although he would not legalize vol- became clear that it was a debate tion? If the merciful termination of untary euthanasia, at least not at this about assisted suicide as well. Very suffering (or termination of an unen- time, Dr. Quill does consider it "an early in the program the moderator, durable existence) is the basis for this area worthy of our serious consid- Roger Mudd, announced: "The issue right, why limit it to those who are eration, since it would allow patients is doctor-assisted suicide and eutha- terminally ill? As Professor Robert who have exhausted all other rea- nasia." At another point he asked Wennberg has asked: Battin whether sonable options to choose death Professor Margaret should the non-terminal was "other than eutha- Why... rather than continue suffering" (p. there any way nature of one's exclude bold to that volun- nasia or suicide suffering 143). I make say physician-assisted ... from or make it se- to end Still he asked one qualifying tary euthanasia would receive very suffering." later, more difficultfor one to as sui- a affiliated with Harlem qualify rious consideration once assisted physician a for suicide? To be cide were or as soon as the "whether eutha- fitting subject legalized Hospital you think sure, the with a non-termi- Court established a consti- suicide- person Supreme nasia-physician-assisted nal illness has to live, and to commit to America's longer tutional right "rational" poses any dangers should that choose to suicide. minorities."25 And Dr. person although Jack commit he or she would I am to both as- Kevorkian has been careful never to suicide, Although opposed be a of sisted suicide and euthan- active euthanasia eliminating greater span voluntary practice voluntary future existence.... But I [such a] asia, find the position of Professor (all the people he helped die by sui- is also a Brock both cide "the last act" them- person eliminating pro- (who supports practices) performed of more coherent and more he the portionately greater quantum principled selves), appeared in opening and and if the than Dr. pain suffering, Quill's: segment. smaller the It is difficult to fault the moderator quantum justifies In both [assisted suicide and vol- elimination of the shorter of for assisted suicide and vol- span untary euthanasia], the choice treating then the euthanasia life, greater quantum restsfullywith the In both untary interchangeably. the elimination of patient. none of the or might justify [cases] the patient acts last in the After all, physicians the bioethicists who on the longer span.26 sense of the right to change his or appeared saw the need at Alan Sullivan, who has her mind until the point at which program or, any rate, presented took the trouble to draw distinc- one of the best for a con- the lethal process becomes irre- any arguments versible.... tion between the two concepts. At stitutional right to suicide, makes one Dr. Howard main- plain that he would not limit such a If there is no intrinsic point Brody significant, tained that "we can find other alter- right to the terminally ill. "Surely,"he moral difference between the natives that don't observes, "under a variety of circum- it is to see require physician- two, difficult why public assisted suicide or euthanasia." And stances life may be unendurable to a or should one legal policy permit at another point Professor Dan reasonable person, even though he but not the other; worries about Brock out that "we to does not face the of immedi- abuse or about do- pointed ought prospect giving anyone be our best to all ate and painful minion over the lives of others doing improve death."27 care, whatever one's It is interesting to note that, al- well to dying patients' apply equally either.24 view about assisted suicide, or eutha- though he carefully circumscribes The fine distinction between as- nasia, is." (As mentioned earlier, Pro- the right to assisted suicide in many sisted suicide and voluntary euthana- fessor Brock doesn't see any real dis- respects, Dr. Quill would not limit it sia was blurred by the hard-fought tinction between the two concepts. Is to the terminally ill. "The patient campaigns in Washington (1991) this also true of all the others who must have a condition," Quill tells us, and California (1992) to legalize "aid- appeared on the program?) "that is incurable, and associated in-dying," a label covering both as- with severe, unrelenting suffering." sisted suicide and voluntary euthana- Can the Right to Assisted Suicide Though he anticipates that most sia. I watched both campaigns very be Confined to the Terminally Ill? people who desire physician-assisted closely and came away with the dis- suicide "willbe imminently terminal," tinct impression that few, if any, un- No doubt the ACLU, in challeng- Quill does "not want to arbitrarily derstood the distinction between the ing the constitutionality of the Michi- exclude persons with incurable, but two practices, paid any attention to it, gan prohibition against assisted sui- not imminently terminal, progressive or cared one whit about it. cide, will frame the issue narrowly;it illnesses such as ALS or multiple will that it is The inability of the media, the pub- emphasize only asserting sclerosis."'"But is it any less arbitrary lic, and even members of the medical the rights of the terminallyill who to exclude the quadriplegic?The vic- profession to grasp this fine distinc- may desire death by suicide. But is tim ofa paralyticstroke? The mangled tion is powerfully illustrated by a there any principled way so to limit survivorof a road accident? A person two-hour presentation, "Choosing the right? afflicted with severe arthritis? 36

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Why stop there? If a competent I think these justifications are suffi- ment or a failure to recognize or ade- person comes to the unhappy conclu- ciently strong to withstand constitu- quately to treat depressive illness in- sion that his existence is unbearable tional attack. fluenced by prejudice against and and freely, clearly, and repeatedly re- I am well aware that the reasons I stereotypes about elderly people? quests assisted suicide, why should shall set forth for upholding the new How likely is it that the social he be rebuffed because he does not Michigan law and similar laws were sanctioning of "rational"suicide and "qualify"under somebody else's stan- not the originalreasonsfor condemn- assisted suicide will lead to an in- dards? Isn't this an arbitrary limita- ing suicide and assisted suicide. But crease in "irrational"suicide and as- tion of self-determination and personal autonomy? "How,"asks Daniel Callahan, "can self-determination have any limits? Why are not the person's desires or motives, whatever Any state that prohibits assisted suicide can advance they be, sufficient?"29 justifications for its legislation that go well beyond the As I understand the position of law's conformity to religious doctrine or "morality." those advocating a constitutional right to suicide and to assisted suicide, a person who "qualifies"should have the same right to enlist the aid of others to die by suicide as one the new "good reasons" people give sisted suicide? In a suicide-permissive now has to withhold or withdraw for old rules and policies "do in- society, how often will the "right"to life-sustaining medical treatment.3s fluence the development of these commit suicide and the "right"to en- If so, it is fairly clear that once estab- policies" and "the 'good reasons' list the assistance of others in this en- lished, the right to assisted suicide professed by our fathers yesterdayare terprise be interpreted, especially by will not be restricted to the termi- among the real reasons of the life of the most vulnerable, as the "duty"to nally ill. For as demonstrated by today." Assigning better reasons for do so? In a suicide-permissivesociety, such decisions as ElizabethBouvia, a the ban against assisted suicide than how often will a burdensome, elderly case involving a young woman with the old religious taboo against touch- relative not otherwise desirous of severe cerebral palsy who was not ter- ing the gates of life and death may be death be "helped along" or pressured minally ill, and Larry McAfee,a case dismissed by some as a process of ra- or "manipulated"into suicide? involving a quadriplegic who ap- tionalization, "but the seeking for At one point in his argument for a parently had a long life expectancy, good reasons ... plays a leading role constitutional right to suicide (and the right to terminate life support in the life of civilization."33 for the corollary right to enjoin has not been so limited. Indeed, the After all, that the criminal law arose government agents from taking steps view that life support cannot be to fill the need to regulate self-help to prevent suicide), Alan Sullivan dis- stopped unless a patient is terminally and to obviate private vengeance poses of a possible objection to his ill-a notion that may have origi- does not render deterrence, in- position-"that one suicide might en- nated in pre-Quinlan cases involving capacitation, and rehabilitation any courage other suicides and ought, for the refusal of blood transfusions by less of a "realreason" for drafting new that reason, to be proscribed"--on Jehovah's Witnesses-is one of the criminal codes or revising old ones. the ground that "itrests upon psycho- "myths" that Professor Alan Meisel Philosophers have spent much logical assumptions about the suici- has recently dispelled.31 time and effort addressing such ques- dal character that are beyond the tions as, When, if ever, is it "rational" scope of this essay." for a Upholding the Prohibition person to want to commit sui- When writing about various sub- cide? Is there a moral right to commit jects I too have put some issues "be- I share the view that before a state "rational"suicide? But I think a legis- yond the scope of this essay."After all, can its citizens for their ac- punish lator considering the desirabilityof a there is only so much time and space "it must do more than assert tions, law prohibiting assisted suicide and a to explore a difficult problem (or a that the choice they have made is an judge determining the constitution- cluster of problems). So Mr.Sullivan's 'abominable crime not fit to be ality of such a law could ask more decision is understandable, especially named Christians."'I among agree, relevant questions, such as: when one keeps in mind that suicide that "the fact that the too, governing So far as we can tell, how common is a complicated subject that cuts in a State has majority traditionally or rare is "rational" suicide? How across many disciplines. But a court viewed a as im- particular practice often does suicide occur in the ab- assessing the constitutionality of a moral is not a sufficient reason for sence of a psychiatric disorder? How criminal prohibition against assisted upholding a law prohibiting the prac- often do primary care physicians fail suicide does not have the same lux- tice." But I believe that any state that to recognize treatable depression in ury. It cannot put psychological as- assisted suicide can advance prohibits their patients, especially elderly sumptions and insights and "psycho- for its that justifications legislation go patients? How often is the failure of a logical autopsy" studies of persons well the law's to beyond conformity primary care physician to take an ag- who die by suicide "beyond the doctrine or religious "morality."And gressive approach to pain manage- scope" of their inquiries. 37

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Such a court must do more, much group, especially on elderly people covers considerable authority for the more, than simply reason by analogy who are terminally ill. But the prob- view that a suicide rarelyoccurs in the from the relevant precedents on the lem of suicide is a good deal more absence of a major psychiatric dis- books. And such a court must keep in complicated. Consider the views of order. mind that it is doing something quite Herbert Hendin, a professor of psy- Two of Timothy Quill's colleagues different from simply judging a de- chiatry and a leading suicidologist, on the University of Rochester medi- bate among philosophers. As Profes- who is opposed to the legalization of cal faculty, Yeates Conwell and Eric sor Philip Devine has observed: doctor-assisted suicide. He concedes Caine, geriatric psychiatrists who that it is sometimes "rational"for a "work with suicidal If philosophers have something people every with a terminal illness to say to the law, so also has the person painful day," warn that "notably lacking" to wish to end his life. "thatis from the debate about rational sui- law something to say to philos- Indeed, of the cide and suicide ophers. Attention to the working, precisely why supporters 'right physician-assisted is to suicide' or 'death control' or the possible working, of any position "attention to the effects of psychi- are the case of atric illness on rational decision institution or principle may well constantly presenting a from to suicide give us insight into weaknesses patient suffering incurable, making." They point study cancer as the case on which that "90 to 100 which remain concealed so long painful findings percent of based their But Dr. the victims die while have as it is posed in sufficiently ab- they argument." they a diag- stract terms.35 Hendin is quick to add: nosable psychiatric illness, an obser- vation that is true in suicides In reality... such understandable equally The Dangers of Establishing a cases form a small among the elderly."9 A number of only percent- other commentators use "Right" to Assisted Suicide age of all suicides, or potential similarly suicides. The of suicides high figures. Suicide is a of consid- majority problem confront us with the of The most commonly cited dis- erable it once problem magnitude. Although whose sit- orders associated with suicide are de- ranked on the list of understanding people twenty-second uation does not from an pressive affective disorders, also causes of death in the seem, United States, outsider's or called "depressive illness" or "major it now ranks on the viewpoint, hopeless (depending par- often even critical. The knowl- depression," a verifiable and diag- ticular year) eighth or ninth. Every nosable condition that is re- edge that there are more suicides usually year there are between 25,000 and to treatment. One by people who wrongly believe sponsive prompt 30,000 reported cases of suicide (and aspect of that of themselves to be suffering from major depression, the number of cases is (which is transient and probably cancer than there are suicides by hopelessness grossly underreported both because to to treatment), those who actually have cancer likely respond ap- of the social stigma that attaches and to be the most and puts the7problem in some per- pears probable because of the possible loss of life source of the spective.s frequent impairment insurance benefits). Moreover, it is that often leads to suicide. estimated that every year in this According to suicidologist David More significant for our purposes, I country several hundred thousand Clark, "the major studies all agree in think, than the prevalence of depres- people attempt suicide and that showing that the fraction of suicide sive illness among people who die by about 10 percent of that group go on victims struggling with terminal ill- suicide is the inability of depressed to kill themselves within a ten-year ness at the time of their death is in the persons to recognize the severity of period. Although suicide occurs at range of 2% to 4%." Two-thirds of their own symptoms and the failure an alarming rate among young those who died by suicide when they of primary physicians to detect major people-adolescent suicide in this were in their late sixties, seventies, depression in their patients, espe- country increased 300 percent in the and eighties "were in relatively good cially elderly patients. As Conwell and twenty years between 1955 and 1975, physical health."38 Caine emphasize: while suicides in the To ask another relevant question, fifteen-to-twenty- [M] doctors on the front lines, four age group now constitute about how often does suicide occur in the any who would be for im- one-fifth of all reported suicides-the absence of a major psychiatric ill- responsible that al- highest suicide rates and the ness? It would not be surprising if the plementing any policy greatest lowed assisted suicide, are ill number of suicides are found answer to this question were affected among to assess the people over the age of Indeed, by what one thought about the equipped presence fifty. and effect of for American white males, from "right" to commit suicide. Some depressive illness in older In the absence of childhood on, the risk of suicide rises believe that virtually every person patients. with until the de- who wishes to die suicide is "men- that sophisticatedunderstanding, linearly age eighth by the determination of a suicidal cade of life. Suicides by over tally ill." Others maintain that such a people can be no the age of sixty account for about 25 person is simply called mentally ill so patient's "rationality" more than to percent of all suicides.36 that his behavior may be controlled. speculation, subject the of biases No doubt the higher rate of suicide Nevertheless, one cannot ignore influence personal about old and the among the elderly has led advocates the studies that do seem to bear on aging, age, effects of chronic of the right to "rational"suicide and this question. And when one dips psychological to assisted suicide to focus on this age into the relevant literature one dis- disease.4? 38

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"Ageism"-the prejudices and A state legislature is free to agree believe, to assisted suicide. As Martin stereotypes applied to the elderly with Professor Battin, but must it? Is it Marty and Ron Hamel have pointed solely on the basis of their age-may constitutionally required to do so? I out, "Weare not merely a collection manifest itself in a failure to recog- hardly think so. I believe a legislature of isolated, self-determining individ- nize treatable depression, a refusal to is free to give Battin's insights about uals." It is unrealistic to think that we take an aggressive approach to pain the dangers of "manipulatedsuicide" can sanction assisted suicide by in- management, the view that an elderly more weight than she herself seems dividuals without having an impact person's desire to commit suicide is more "rational" than a younger patient's would be. As sociologist Menno Boldt has observed, "Suicidal In a climate in which suicide is the "rational" to are to what thing do, persons succumbing they or at least a will it become the experience as an overpowering and "reasonable"option, unrelenting coercion in their en- unreasonablething not to do? vironment to cease living. This sense of coercion takes many familiar forms: fear, isolation, abuse, useless- ness, and so on."41 willing to do; that is one of the risks,if upon "the various communities of Will these pressures intensify in a one may call it that, one takes when which they are a part, and even society that sanctions assisted suicide one produces the kind of high-quality society as a whole."44 (and thereby suicide as well)? In a scholarship she does. I am willing to concede that the suicide-permissive society, will family Professor Battin may be saying line between withholding or with- members so inclined be more likely something else: she may be conced- drawing life-sustaining medical treat- to alter or manipulate a sick, elderly ing that the dangers of "manipulated ment (what many have called passive person's circumstances (for example, suicide" arequite substantial, but they euthanasia) and "ordinary" suicide by providing shoddy or even hostile are trumpedby one's "fundamental and assisted suicide is not a neat, logi- care) so that suicide becomes a rea- right" to die by suicide. At one point cal line. But what line is? Surely not sonable, even an attractivechoice? she maintains that we cannot deny the line between assisted suicide and In a climate in which suicide is the "individuals in intolerable and ir- voluntary active euthanasia. Nor the "rational"thing to do, or at least a remediable circumstances their fun- line between the right of a terminally "reasonable" option, will it become damentalright to die." Whether there ill person to enlist the assistance of the unreasonable not to do? is a is the others in suicide and the thing "fundamental right" ques- committing The noble thing to do?4 In a suicide- tion, not the answer. I don't know right of a quadriplegic to seek similar permissive society plagued by short- how those of us who are not religious assistance, or the right of a person ages of various kinds and a growing can get an authoritative ruling on who finds her inability even to shift population of "nonproductive"people, whether morallythere is a "fundamen- position in her wheelchair intoler- how likely is it that an old or ill tal right" to choose death by suicide. able, or the right of a person with a person will be encouraged to spare But I think I do know that legallythere progressive illness. both herself and her family the is no such right. As we have seen, a I cannot believe that any court will agony of a slow decline, even though decade after Professor Battin wrote recognize a constitutional right to sui- she would not have considered sui- her provocative essay, the Cruzan cide on request. But unless we carry cide on her own? Court declined to accord the much the principle of self-determination or The best discussion of both cir- less controversial liberty to terminate personal autonomy to its logical ex- cumstantial manipulation and ideo- life-sustaining treatment "fundamen- treme-assisted suicide by any com- logical manipulation appears in a tal right" status. petent person who clearly and re- famous essay by the philosopher Although she is painfully aware of peatedly requests it for any reason she Margaret Battin who, ironically, is a "the moral quicksand"into which the deems appropriate-we have to find proponent of rational suicide. In an notion of rational suicide "threatens a "stopping point" somewhere along all-too-rare display of openminded, to lead us,"Professor Battin voices the the way.Any such stopping point will balanced scholarship, Professor Bat- hope that if we accept that concept be somewhat illogical, somewhat ar- tin presents a strong case against her "perhapsthen we may discover a path bitrary. So why not maintain the line own ultimate position. She conscien- around" the quicksand. Perhaps. Per- we have now? tiously spells out how acceptance of haps not. In any event, I submit, the Albert Alschuler, my counterpart at her views would open the way for Constitution does not prevent a the University of Chicago Law both individualand societal manipula- legislature from reaching the conclu- School, recently declared: "[T]he tion of vulnerable people into choos- sion that there is no safe path around. strongest argument for the action- ing death by suicide when they would inaction line is that, despite its inde- not otherwise have done so. She con- Some Final Thoughts terminacy and imprecision, we need cludes, nevertheless, that "on moral it. We have no other line, and without grounds we must accept, not reject, What has been said of voluntary it we sense no limits." Professor active the notion of rational suicide.'43 euthanasia applies as well, I Alschuler may have overstated the 39

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case, but not, I think, by very much. sity of Michigan law student Marc Spin- 19. Louis Seidman, "Confusion at the Why step across "the historic divide" delman for helpful comments. Border: Cruzan,'The Right to Die,' and only to draw another somewhat illogi- the Public/Private Distinction," Supreme cal, somewhat arbitrary line some- References CourtReview, 1992, pp. 47-76, at 62. where else? "[I]t is easier to move 20. See "The Supreme Court 1989 1. For a careful, detailed of the further down the than to climb analysis Term," p. 262. slope Michigan law, see George Annas, "Physi- back 21. Smith, "All'sWell That Ends Well," up.'"5 cian-Assisted Suicide: Michigan's New In this article I have been pp. 279-80. See also Mary Barrington, focusing Law,"NEJM (1993) (forthcoming). "Apologiafor Suicide," in Euthanasiaand on the constitutional dimensions of 2. See Thomas Marzen et al., "Suicide: the Right to Death: The Casefor Voluntary the right to shape one's death. Thus, A Constitutional Right?"Duquesne Law Re- Euthanasia, ed. A. B. Downing (Atlantic I do not have to argue that a state view 24 (1985): 1-241, at 97-98; George Highlands, N.J.:Humanities Press, 1969), ought not cross the historic divide Smith, "All'sWell That Ends Well:Toward p. 162 ("that voluntary euthanasia is in a of Assisted Rational Suicide or (although I would); I need only Policy fact assisted suicide is no doubt clear to MerelyEnlightened Self-Determination?" argue that it is not constitutionally most people"); Raanon Gillon, "Suicide Universityof CaliforniaDavis Law Review compelled to do so. Consider the and VoluntaryEuthanasia: Historical Per- 22 (1989): 275-419, at 290-91. See also spectives," in Euthanasia and the modern history of our attitudes and Right to Timothy E. Quill, Death and Dignity:Mak- Death,pp. 173-74 ("voluntary euthanasia beliefs concerning death and dying: ing Choicesand TakingCharge (New York: is essentially a form of suicide, involving Recent court decisions have re- W. W. Norton, 1993), p. 141. the assistance of others"). 3. Dan Brock, Eutha- jected many of the distinctions "VoluntaryActive 22. See Joseph Fletcher, Morals and nasia," Hastings CenterReport 22, no. 2 Medicine commentators have proposed in (Boston: Beacon Press, 1954), p. (1992): 10-22, at 19 (emphasis added). 176;James Rachels, TheEnd Eutha- earlier discussions about the right ofLife: 4. See Marzen et al., "Suicide,"pp. 68- nasia and Morality(New York:Oxford Uni- to die: not only the distinction 100. versityPress, 1986), pp. 86-87. between and extraordi- 5. American ordinary Law Institute, ModelPenal 23. Quill, Death and Dignity, pp. 142, nary... treatment, but also the Codeand Commentaries,PartI, ? 2.10.5 at 94 159. distinction between actively (1985). 24. Brock, "VoluntaryActive Euthana- hastening death by terminating 6. Marzen et al., "Suicide,"pp. 86, 100. sia," p. 10. Brock is responding to Sidney 7. See Leon treatment and passively allowing Kass, "Is There a Right to Wanzer et al., "The Physician's Responsi- Die?" Center no. a person to die of a disease, be- Hastings Report 23, 1 bility toward Hopelessly Ill Persons: A tween and withdraw- (1993): 34-43, at 34, 35. Second Look," NEJM320 (1989): 844-49, withholding 8. Oliver Wendell "The and Holmes, Path at 848. Although Wanzer and his coau- ing life-sustaining treatment, of the Law,"in Collected between LegalPapers (New thors stopped short of approving active the termination of artifi- York: Harcourt, Brace, 1920), pp. 167,187. voluntary euthanasia, they did not cial feedings and the termination disap- 9. Sanford Kadish, "The Model Penal prove it. of other forms of Code's Historical life-sustaining Antecedents," Rutgers 25. These and subsequent quotations treatment.46 at LawJournal19 (1988): 521-38, 521. are from the transcript of "Choosing 10. See American Law Institute, If, as has well been said, "the his- Death" (a special edition of Health Quar- "Model Penal Code" (tentative draft no. tory of our activities and beliefs con- terly),23 March 1993. The day the docu- 9, 1959), pp. 56-57. mentary was scheduled to be shown, itwas cerning the ethics of death and dying 11. See Marzen et al., "Suicide,"p. 95. described as a "debateabout euthanasia." is a of lost distinctions of history 12. In reQuinlan, 70 N.J. 10, 355 A.2d See Walter Goodman, "Euthanasia as It former what reason is 670 significance,"47 647, 665, and fn. 9 (1976). Seems to Those Taking Part," New York there to think that that history will 13. Norman Cantor, "The Perma- Times,23 March 1993. come to an Unconscious end when we sanction nently Patient, Non-Feed- 26. RobertWennberg, TerminalChoices: and assisted suicide for the terminally ill? ing Euthanasia,"American Journal of Euthanasia, Suicide, and the Right to Die Law and Medicine What reason is there to doubt that in 15 (1989): 381-437, at (Grand Rapids, Mich.: William B. Eerd- 433. the not-too-distant future the distinc- mans, 1989), p. 99. 14. Daniel The Troubled tion between assisted suicide and vol- Callahan, 27. Alan Sullivan, "A Constitutional Dream of Life: Living with Mortality(New untary euthanasia or the distinction Right to Suicide," in Suicide:The Philosoph- York:Simon and Schuster, 1993), ch. 2. ed. Battin and David between the terminally ill and other icallssues, MargaretP. 15. Jeb Rubenfeld, "The Right to Pri- J. Mayo (New York: St. Martin's Press, ill would become seriously people vacy,"Harvard Law Review 102 (1989): 737- 1980), p. 241. still other "lost distinctions of former 807, at 795. 28. Quill, Deathand Dignity,p. 162. 16. Cruzan v. Missouri significance"? Director, De- 29. Callahan, TheTroubledDream ofLife, I can hear the cries of protest: partment of Health, 497 U.S. 261, 280 ch. 3. See also Leon Kass, "Neither for See "slippery slope" arguments are a com- (1990). also Paris Adult Theatre v. Love nor Money: Why Doctors Must Not Slaton, 413 U.S. 68 and fn. 15 mon debating tactic. Yes they are- 49, (1973). Kill," ThePublic Interest94 (1989): 25-46, 17. "Cruzan about as common as the of John Robertson, and the at 32-33. technique Constitutional Status of Nontreatment overcoming opposition to a desired 30. See Sullivan, "ConstitutionalRight Decisions for Incompetent Patients," to Suicide," goal by proceeding step by step. p. 240. GeorgiaLaw Review25 (1991): 1139-1202, 31. See Alan Meisel, "Legal Myths at 1174-75 and fn. 132. about Terminating Life Support,"Archives 18. See "The Supreme Court 1989 of Internal Medicine 109 (1991): 1497- I am grateful to my colleagues Larry Term," Harvard Law Review104 (1990): 1502, at 1498-99, Kramer and discussing Bouvia, Richard Pildes, and Univer- 43-358, at 257. McAfee,and other cases. 40

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32. Blackmun, J., joined by Brennan, man, "Physician-Assisted Suicide: The icine and Philosophy17 (1992): 664-81, at Marshall, and Stevens, JJ., dissenting in Dangers of Legalization," AmericanJour- 664. Bowersv. Hardwick,478 U.S. 186, 199-200 nal of Psychiatry150 (1993): 14345. 43. Margaret Pabst Battin, "Manipu- (1986), and Stevens,J.,joined by Brennan 38. Clark, " 'Rational' Suicide," pp. lated Suicide," in Suicide:The Philosophical and Marshall,JJ.,at 216. In Hardwick,a 54 151-53. Issues,pp. 169, 179. majority upheld the constitutionality of a 39. YeatesConwell and Eric Caine, "Ra- 44. Martin Marty and Ron Hamel, Georgia law criminalizing homosexual tional Suicide and the Right to Die: Reality "Some Questions and Answers,"in Active sodomy. and Myth,"NEJM 325 (1991): 1100-1102. Euthanasia, Religion,and thePublic Debate, 33. The quotations are from Morris R. See also James Brown et al., "IsIt Normal ed. Ron Hamel (The Park Ridge Center, Cohen, TheFaith of a Liberal(New York: for Terminally Ill Patients to Desire 1991), pp. 27, 40. Henry Holt, 1946), p. 70. Death?" AmericanJournal of Psychiatry143 45. The quotations are from Albert Al- 34. Sullivan, "Constitutional Right to (1986): 208-11. schuler, "Reflection,"in ActiveEuthanasia, Suicide," p. 243. 40. Conwell and Caine, "RationalSui- pp. 105, 107, 108. 35. Philip Devine, TheEthics ofHomicide cide and the Right to Die," p. 1101. 46. Laurence Tribe, AmericanConstitu- (Ithaca:Cornell UniversityPress, 1978), p. 41. Quoted in Colt, TheEnigma of Sui- tionalLaw, 2nd ed. (Mineola, N.Y.:Foun- 188. cide,p. 342. dation Press, 1988), pp. 64-65. See also 36. See George Colt, The Enigma of 42. See Victor Rosenblum and Clark Yale Kamisar,"When Is There a Constitu- Suicide(New York:Summit Books, 1991), Forsythe, "The Right to Assisted Suicide: tional 'Right to Die'? When Is There No pp. 37-38; Herbert Hendin, Suicide in Protection of Autonomy or an Open Constitutional 'Right to Live'? GeorgiaLaw America(New York:W. W. Norton, 1982), Door to Social Killing?"Issues in Law and Review25 (1991): 1203-42, at 1205-27. pp. 185-86;David Clark, "'Rational' Suicide Medicine6(1990): 3-31, at 27. See also Yale 47. Thomas Mayo, "Constitutionaliz- and People with Terminal Conditions or Kamisar, "Some Non-Religious Views ing the 'Right to Die,"' Maryland Law Disabilities," Issuesin Law and Medicine8 Against Proposed 'Mercy-Killing'Legisla- Review 49 (1990): 103-55, at 144. (1992): 147-66, at 148. tion," MinnesotaLaw Review 42 (1958): 37. Hendin, Suicidein America,p. 214. 969-1042, at 990-93; David Velleman, See also Herbert Hendin and Gerald Kler- "Againstthe Right to Die,"Journal of Med-

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