Report No. 196

(2) Washington et al vs. Gluckberg et al: (1997) 521 US 702

Two judgments were delivered on 26th June 1997 by the US Supreme Court, one was in Washington v. Gluckberg and the other was in Vacco, Attorney General of New York et al vs. Quill et al. (1997) 117 S.Ct 2293. Both related to the validity of a law made in different States, banning 'assisted suicide'. The two judgments refer incidentally to Cruzan and related cases dealing with the right of a patient to refuse medical treatment. Therefore, these cases are also relevant in the present discussion.

In this case, Rehnquist CJ delivered the opinion which was concurred by O'Connor, Scalia, Kennedy and Thomas JJ. O'Connor gave a concurring opinion, in which Ginsberg and Breyer JJ joined in part. Stevens, Souter, Ginsberg and Breyer JJ each filed concurring opinions.

Here, in the State of Washington, the act of assisting suicide was always an offence. The present law makes 'promoting a suicide attempt' a felony and provides: "A person is guilty of (that crime) when he knowingly causes or aids another person to attempt suicide".

The Respondents were Washington physicians who occasionally treated terminally ill, suffering patients, declared that they would assist these patients in ending their lives if the State's assisted suicide ban was not there. They, along with three gravely ill plaintiffs (who have since died), and a non-profit organization that counsels people considering 'physicianassisted suicide', filed this suit against State and others seeking a declaration that the ban was, on its face, unconstitutional.

They assert a liberty interest protected by the 14th Amendment's Due Process Clause which extends to a personal choice by a mentally competent, terminally ill adult to commit suicide by medical assistance. The trial and first appellate Courts held the ban was unconstitutional.

Allowing the appeal (see Head Note), the Supreme Court held that the Washington law against 'causing' or 'aiding' suicide was not violative of the Due Process Clause. For over 700 years, assisted suicide had remained prohibited under Anglo American Common Law and it has been a crime in almost every State. The President had, in fact, signed the Federal Assisted Suicide Funding Restriction Act, 1997 which prohibits the use of federal funds in support of physician assisted suicide. The right to assist suicide is not a fundamental liberty interest protected by Due Process Clause, in the light of history.

The substantive due process has two feature.- firstly, it protects those fundamental rights and liberties which have been, objectively considered to be deeply rooted in the American history and tradition. Secondly, the Court has required a 'careful description' of the asserted fundamental interest. The right to assist suicide claimed by the respondents runs counter to the second requirement. This asserted right has no place in the traditions of US, even for terminally ill, mentally competent adults.

The contention that the asserted interest is consistent with the Court's substantive due process cases.- if not the Country's history and practic.- is not persuasive. On the other hand, the constitutionally protected right to refuse treatment by use of lifesaving hydration and nutrition that was discussed in Cruzan was not simply deduced from abstract concepts of personal autonomy, but was, in fact, based on the country's history and tradition, given the Common Law rule that forced medication was a battery and the long traditions protecting the decision to refuse unwanted medical treatment.

Although, Planned Parenthood vs. Casey (1992) 505 US 833 recognised that many of the rights and liberties protected by the Due Process Clause sound in personal autonomy, it does not follow that any and all important, intimate and personal decisions are so protected (see A San Antonio Independent School District vs. Rodriguez: (1973) 411 US 1.

The ban is rationally related to legitimate government interests in prohibiting intentional killing and preserving human life; preventing the serious public health problem of suicide, especially among the young and elderly and those suffering from unrelated pain or depression or other mental disorders, for protecting the medical profession's integrity and ethics and maintaining physician's role as healers of patients, protecting the terminally ill and vulnerable groups and for avoiding a possible slide towards voluntary and perhaps even involuntary euthanasia.

In the main opinion delivered by Rehnquist CJ, it was stated that the majority of States in US have laws imposing criminal penalties on those who assist suicide. In fact, over a period of 700 years, the Anglo American Common Law punished or disapproved suicide and assisted suicide. "Because of advances in medicine and technology, Americans today are increasingly likely to die in institutions, from chronic illness.

Public concern and democratic action are therefore sharply focused on how best to protect dignity and independence at the end of life, with the result that there have been many significant changes in State laws and in the attitudes these laws reflect. Many States, for example, now permit 'living wills', surrogate health-care decision making, and the withdrawal or refusal of life sustaining medical treatment. "At the same time, however, voters and legislators continue for the most part to re-affirm their States 'prohibitions on assisting suicide."

Washington passed 'Natural Death Act, 1979' which specifically stated that the-

'withholding or withdrawal of life sustaining treatment shall not, for any purpose, constitute a suicide" and that

"nothing in this chapter shall be construed to condone, authorize or approve mercy killing"

(Washington Laws, Ch. 112, section 8(1)). The Washington statute at issue in this case, i.e. banning assisted suicide is in the Washington Rev Code see 9A.36.060 1994) (see Wash Rev Code ss 70.112.070(1), 70.122.100)(1994). (However, Oregan enacted in 1994 a Death With Dignity Act, which legalized physicians assisted suicide for competent, terminally ill adults. See Oregan Rev Stet. MC 127.8N. The Act was upheld in Lee vs. Oregan: 107 F.3d 1382 (A 9, 1997). Iowa and Rhode Island too rejected assisted suicide (1997). President Clinton signed the Federal Assisted Suicide Funding Restrictive Act 1997 which prohibits the use of federal funds in support of physician assisted suicide. (Pub. L. 105-12, 111 Stat 23 codified at 42 USC para 14401 etc)".

In Cruzan, the Court assumed that the Constitution guaranteed competent persons a 'constitutionally protected right to refuse life saving hydration and nutrition'. The question now is whether the liberty protected by the Due Process Clause 'includes a right to commit suicide which itself includes a right to assistance in doing so'.

To accept this plea, the Court has to review centuries of legal doctrines and practices and strike down the considered policy choices of almost every State. If a thing has been practiced for two hundred years by common consent, it will need a strong case for the Fourteenth Amendment to affect it. (Reno v. Flores (1993) 507 US 292 at 302). Apart from history and practice, the plea runs contrary to the Court's due process line of cases, which no doubt include 'basic and intimate exercises of personal autonomy'. The respondents claim that the "due process clause includes a right to commit suicide with another's assistance", cannot be accepted.

In Cruzan, it was only stated that at common law there was the right to refuse medical treatment in the absence of which such medical intrusion would be 'battery'. Informed consent is necessary for medical treatment. The Court there said that 'the principle that a competent person has a constitutionally protected liberty interest in refusing unwanted medical treatment'.

The Court assumed that the US Constitution would grant a competent person a constitutionally protected right to refuse life-saving hydration and nutrition'. The Court concluded that, notwithstanding that right, the Constitution permitted Missouri State to require a clear and convincing evidence of an incompetent patient's wishes concerning withdrawal of life sustaining treatment. Rehnquist C.J, said

"The decision to commit suicide with the assistance of another may be just and profound as the decision to refuse unwanted medical treatment, but it has never enjoyed similar legal protection. Indeed, the two acts are widely and reasonably regarded as quite distinct.....

In Cruzan itself, we recognized that most States outlawed assisted suicid.- and even more do toda.- and we certainly give no intimation that the right to refuse unwanted medical treatment could be somehow transmitted into a right to assistance in committing suicide."

Though the Due Process protection for abortion in certain situations and personal decisions regarding marriage, contraception, family relationships, child rearing, education etc. were based on a right to personal autonomy, it 'does not warrant the sweeping conclusion that any and all important, intimate and personal decisions are so protected.

"The history of the law's treatment of assisted suicide in this country has been and continues to be one of the rejection of nearly all efforts to permit it. That being the case, our decisions lead us to conclude that the assisted 'right' to assistance in committing suicide is not a fundamental liberty interest protected by the Due process clause. The Constitution also requires, however, that Washington's assisted suicide ban be rationally related to legitimate government interests. This requirement is unquestionably met here.

As the Court below recognized, Washington's assisted suicide ban implicates a number of state interests. First, Washington has an 'unqualified interest in the preservation of human life. The State's prohibition on assisted suicide, like all homicide laws, both reflects and advances its commitment to this interest. This interest is symbolic and aspirational as well as practical. The State has an interest in preventing suicide. Research indicates, however, that many people who request physician assisted suicide withdraw that request if their depression or pain are treated."

Rehnquist CJ also pointed out that the State has an interest in protecting the integrity and ethics of the medical profession and physician's groups and concluded that 'physician assisted suicide is fundamentally incompatible with the physician's role as healer'. And physician assisted suicide could undermine the trust that is essential to the doctor patient relationship, by blurring the time-honoured line between healing and harming.

In addition, the State has an interest in protecting vulnerable group.- including the poor, the elderly and disabled person.- from abuse, neglect and mistakes. The Court recognized the real risk of subtle coercion and undue influence in end-of-life situations. If physician assisted suicide were permitted, many might resort to it to spare their families the substantial financial burden of end of life health-care costs.

The State's interest extends to protecting the disabled and terminally ill people from prejudice, negative and inaccurate stereotypes, and 'societal indifference'. The ban reflects and reinforces the policy that the lives of terminally ill, disabled and elderly people must be no less valued than the lives of the young, and healthy.

The State may fear that permitting assisted suicide will start it down the path to voluntary and perhaps even involuntary euthanasia. The Court of Appeal, no doubt, struck down the ban in so far as it applied to "competent, terminally ill adults who wish to hasten their deaths by obtaining medication prescribed by their doctors. But the Washington law rightly insists that if the protection is a matter of constitutional right, it must apply to all persons. But, if in the process of physician assisted suicide, the family members and loved ones will inevitably participate, then it could prove extremely difficult to police and contain. The Act prevents such erosion."

The Court said that this concern is supported by unfortunate results of the practice of euthanasia in the Netherlands. The Dutch government's own study revealed that in 1990, there were 2,300 cases of voluntary euthanasia, 400 cases of assisted suicide, and more than 1000 cases of euthanasia without an explicit request. In addition to these latter 1000 cases, the study found an additional 41941 cases where physicians administered lethal morphine overdoses without the patients' explicit consent.

This study suggests that, despite the existence of various reporting procedures, euthanasia in the Netherlands has not been limited to competent, terminally ill adults who are enduring physical suffering, and that regulation of the practice may not have prevented abuses in cases involving vulnerable persons, including severely disabled neonates and elderly persons suffering from dementia. Washington State, like most other States, reasonably ensures against the risk by banning, rather than regulating, assisted suicides.

(We are not referring to the reasons given in the other concurring opinions in this case.)