American Journal of Law & Medicine

Constitutional aspects of physician-assisted suicide after Lee v. Oregon.

Dying is personal. And it is profound. For many, the thought of an

ignoble end, steeped in decay, is abhorrent. A quiet, proud death,

bodily integrity intact, is a matter of extreme consequence.

--Justice William Brennan(1)


Two recent circuit court decisions have reinvigorated the debate over the constitutional, practical and ethical ramifications of physician-assisted suicide.(2) In Compassion in Dying v. Washington, the Ninth Circuit Court of Appeals held that a liberty interest exists in choosing the time and manner of one's death.(3) The court found this right to outweigh all asserted state interests, and concluded that, with respect to competent, terminally ill adults, Washington's prohibition of assisted suicide violates the Due Process Clause of the U.S. Constitution.(4) The ruling effectively strikes down laws against assisted suicide in all of the states in the Ninth Circuit.(50

In April 1996, in Quill v. Vacco, the Second Circuit Court of Appeals held that New York's prohibition of assisted suicide violates the U.S. Constitution's Equal Protection Clause.(6) The court found that the law treated similarly situated groups dissimilarly by allowing the withdrawal of life-sustaining treatment even if that would result in death, but preventing physicians from prescribing lethal medication to other terminally ill people at their request.(7) The U.S. Supreme Court agreed to review both decisions, and should issue its ruling this summer.(8)

The U.S. Supreme Court's review of Compassion in Dying and Quill has shared the "assisted suicide" spotlight of late. In Michigan prosecutors continue their crusade against Dr. Jack Kevorkian, trying him unsuccessfully for violations of state provisions against assisted suicide.(9) In Oregon, residents took a dramatic step in the opposite direction, voting to legalize physician-assisted suicide for competent, terminally ill people under certain circumstances.(10)

On November 8, 1994, Oregon voters narrowly passed the highly controversial Death with Dignity Act (Measure 16), fifty-two to forty-eight percent.(11) Although physician-assisted suicide has received substantial attention in recent years, passage of the Oregon Measure marked the first time the practice had been explicitly legalized anywhere in the world.(12) Measure 16, which allows physicians to prescribe a lethal dose of medication to terminally ill people under certain conditions,(13) temporarily shifted the debate over physician-assisted suicide. Rather than grapple with whether there exists a "right to die" protected by the U.S. Constitution, Measure 16 presented an opportunity to evaluate the novel concept of state-sanctioned assisted suicide. Subsequently, a U.S. district court considered traditional moral and legal arguments both for and against physician-assisted suicide in the context of a law allowing the practice.(14)

Measure 16 authorizes a qualified patient to "request and obtain a prescription to end his or her life in a humane and dignified manner."(15) Proponents of the law hoped that it would grant competent, terminally ill persons a way of ending their lives with dignity, free from suffering.(16) The measure sought to achieve these goals by exempting doctors from punishment under the criminal statute outlawing assisted suicide.(17)

In Lee v. Oregon, a group of physicians, several terminally ill persons, a residential care facility, and individual operators of residential care facilities sought to enjoin enforcement ,of the new law, claiming various constitutional infirmities.(18) The plaintiffs initially claimed that Measure 16's classification of the "terminally ill" did not rationally relate to a legitimate state interest, and thus violated the Equal Protection Clause.(19) The plaintiffs also argued that Measure 16 deprived depressed, terminally ill people of their right to live, in violation of the Due Process Clause.(20)

The U.S. District Court for the District of Oregon enjoined enforcement of the law, acknowledging that it raised important constitutional issues including possible violations of the Equal Protection and Due Process Clauses of the Fourteenth Amendment.(21) At a hearing on the merits, the court found that Measure 16 violated the Equal Protection Clause, but it failed to reach the due process issue.(22) The court held that "Measure 16 withholds from terminally ill citizens the same protections from suicide the majority enjoys," but suggested that, with certain modifications, the act could pass constitutional muster.(23)

Although the Compassion in Dying decision, unless reversed on appeal to the U.S. Supreme Court,(24) effectively grants terminally ill patients in Oregon the right to a physician's assistance in hastening their deaths,(25) a detailed discussion of Lee v. Oregon remains vital. Other circuits may face challenges to laws legalizing physician-assisted suicide, and must therefore understand Lee.(26)

Part II of this Note outlines several important ethical and legal arguments both in favor of, and opposed to, legalized assisted suicide. Part III discusses the cases that have reviewed laws prohibiting physician-assisted suicide. Part IV examines Measure 16 in detail, including a review of the safeguards drafted into the act. This Note continues with a discussion of the constitutional questions presented in Lee v. Oregon as traditionally analyzed and as treated by the court.

This Note concludes that one may not properly infer a fundamental right to assisted suicide. In addition, the Equal Protection Clause does not prevent states from recognizing a patient's right to remove life-sustaining treatment and hydration, while prohibiting doctors from prescribing lethal medication to the terminally ill on request. However, this Note also concludes that under relevant U.S. Supreme Court cases, the court in Lee v. Oregon erred by ruling that Measure 16 violated equal protection. Because the-classification drawn in Measure 16 rationally relates to a legitimate state interest, there can be no violation of the Equal Protection Clause. If the courts eventually strike down Measure 16, this Note recommends that sponsors reintroduce a modified version of the law that satisfies the Lee court's concerns. Because the court based its judgment in part on the classification's perceived overinclusiveness,(27) it follows that a new act with tighter distinctions would pass equal protection analysis.


Both suicide generally, and physician-assisted suicide specifically, have withstood rigorous historical scrutiny.(28) The constitutional issues this Note addresses reflect significant moral, ethical, theological and practical concerns.


The primary arguments in support of legalized physician-assisted suicide derive from familiar themes of dignity and personal autonomy.(29) Technology which has extended the average life-span has also brought forth images of incapacitation, helplessness and suffering.(30) Most Americans believe that terminally ill patients should be allowed to end their lives before they die of natural causes.(31) The American Medical Association, while rejecting physician-assisted suicide, noted that physicians "demonstrate respect for human dignity when [they] acknowledge `the freedom [of individuals] to make choices in accordance with their own values.'"(32) Despite objecting to suicide generally, many feel that assisted suicide presents a reasonable alternative to living with the perceived indignity and pain of terminal illness.(33)

Closely related to the idea that we should live and die with dignity is the celebrated concept of personal autonomy. As a popular notion, personal autonomy implies a certain latitude of self-determination, valued because "it permits people to form and live in accordance with their own conception of a good life, at least within the bounds of justice and consistent with others doing so as well."(34) Laws prohibiting assisted suicide curtail the freedom to make important choices about one's life.(35)


Those who oppose legalized assisted suicide in any form often rely on moral, religious and historical imperatives. Laws against suicide, although no longer in force in the United States, prevailed in English common law until 1961.(36) English law "perceived suicide as an immoral, criminal offense against God and also against the King, who as a result thereof was deprived of one of his subjects."(37) The United States rejected laws against suicide in the mid-nineteenth century,(38) although a large majority of states continue to criminalize aiding and abetting suicide.(39)

States continue to prohibit assisted suicide to protect the sanctity of human life.(40) In principle, "the interests in the sanctity of life that are represented by criminal homicide laws are threatened by one who expresses a willingness to participate in taking the life of another, even though the act may be accomplished with the consent, or at the request, of the suicide victim."(41) These objections probably originated in religious doctrine.(42)

Some have argued that legalizing assisted suicide will make suicide a rational or reasonable alternative to life. One commentator presented the worst-case scenario:

In a suicide-permissive society plagued by shortages of various kinds

and a growing population of `nonproductive' people, how likely is it

that an old or ill person will be encouraged to spare both herself and

her family the agony of a slow decline, even though she would not

have considered suicide on her own?(43)

Critics perceive legalization of assisted suicide as the top of a slippery slope that would ultimately devalue human life.(44)

The slippery slope theory has been refuted in part by experience in the Netherlands, where euthanasia is accepted, though not legal.(45) Dutch authorities will not prosecute as long as three conditions are met:

First, the patient must take the initiative in requesting euthanasia and

has to request euthanasia repeatedly, consciously, and freely. Second,

the patient must be experiencing suffering that cannot be relieved by

any means except death. Third, the physician must consult with

another physician who agrees that euthanasia is acceptable in the

particular case.(46)

In the Netherlands, it appears that when requests for euthanasia or assisted suicide have been fulfilled, those requests were explicit and persistent, and rarely made under pressure from others.(47)

One of the primary attacks against physician-assisted suicide relates to the doctor's perceived role as a "healer."(48) To become a physician, prospective doctors must take the Hippocratic Oath, which states, in relevant part, "I will give no deadly medicine to anyone if asked, nor suggest any such counsel."(49) Many believe that a physician dedicated to her role as a healer cannot reconcile assisting in the death of a patient.(50) Yet doctors themselves generally support physician-assisted suicide in some cases.(51) Dr. Timothy Quill, for example, has used specific "sympathetic" cases to argue that a doctor's responsibility to relieve suffering encompasses prescribing a lethal dose of medication if necessary.(52) However, some commentators question the motives of those proposing legalization of assisted suicide.(53)

Critics argue that our society has moved toward accepting physician-assisted suicide primarily because it has failed to respond adequately to the needs of the elderly, terminally ill population.(54) They contend that given universal health coverage, and better, more accessible hospice care, for example, people would choose to live.(55) In this view, assisted suicide is a "quick-fix" that establishes a dangerous precedent.(56)



Reasonable grounds exist on which a court could find that the right of privacy extends to physician-assisted suicide.(58) In Casey, the U.S. Supreme Court acknowledged a constitutional right of privacy, stating that matters

involving the most intimate and personal choices a person may make in a

lifetime, choices central to personal dignity and autonomy, are central to

the liberty protected by the Fourteenth Amendment. At the heart of liberty

is the right to define one's own concept of existence, of meaning, of the

universe, and of the mystery of human life. Beliefs about these matters

could not define the attributes of personhood were they formed under

compulsion of the state.(59)

Few would dispute that death ranks among the most mysterious concepts that human beings confront. Terminally ill patients confront death while most others in society brush it aside. Similarly, pregnant women, by virtue of their condition, are uniquely situated to determine whether to terminate their pregnancies.(60) Both terminally ill patients and pregnant women must evaluate their beliefs about existence and the mystery of human life, before acting. A broad reading of Casey suggests that a terminally ill patient's intimate choice to receive a lethal dose of medication should be protected by the Fourteenth Amendment.(61)

One must note, of course, that although Casey reaffirmed the "essential holding" of Roe v. Wade,(62) it also substantially narrowed that decision.(63) Under Casey, only those state limitations that pose an "undue burden" on a protected interest will be found unconstitutional.(64) An unduly burdensome limitation "has the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion."(65) Still, it remains unclear how courts should apply the "undue burden" standard outside of the abortion context.(66) Yet, assuming the existence of a liberty interest in choosing physician-assisted suicide, one could hardly argue that a law banning assisted suicide in all circumstances does not constitute an undue burden on its exercise.(67)

The argument in favor of a constitutionally protected liberty interest in physician-assisted suicide suffers because the purported right falls outside boundaries of the privacy right delineated by case law.(68) The Court suggested that it would hesitate to broaden the scope of the privacy interest beyond matters involving "marriage, procreation, contraception, family relationships, child rearing, and education."(69) The abortion cases and related decisions "are not intended to lead automatically to the recognition of other fundamental rights on different subjects."(70) Recent decisions such as Casey demonstrate the U.S. Supreme Court's reluctance to expand the right of privacy beyond its current scope.


Although the right of privacy may not include assisted suicide, a second line of cases offers a more realistic possibility for its protection. In Cruzan v. Director, Missouri Department of Health, the U. …

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