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Legality of Physician-Assisted Suicide

Krista Roze

BSLW102110

Professor Pelligrino

April 21, 2017

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Physician assisted suicide, as it is most frequently used in law, is defined as

“providing or prescribing medication to someone, knowing that that person intends

to take a lethal dose of the medication”1. This is differentiated from euthanasia in

that euthanasia is the act of the physician himself or herself administering the lethal

medication to the patient, such as through injection.2 Physician-assisted suicide

therefore, places both the intent and act causing the death in the hands of the

patient, whereas with euthanasia, the act is placed in the hands of the physician.

This paper covers the laws and statutes concerning physician-assisted suicide

specifically. The emotionality of the topic of life versus death makes an objective

decision difficult to come to, and so there has been much controversy and conflict

within the American legal system as to whether it should be legalized or not.

A central question within this debate that is a determining factor in its

resolution concerns whether or not humans have a so-called “right to die”3. The

question of the existence of a “right to die”, choosing one’s time and means of death,

dates back to as early as the thirteenth century.4 Suicide is mentioned in English

common law in 1765, condemning it as a crime.5 The States, with the adoption of the

1 Henry, Sarah. "The Battle over Assisted Suicide: A Time to Die." California Lawyer (1996): 1, pg 35.
2 Compassion in Dying v. State of Wash., 79 F. 3d 790 - Court of Appeals, 9th Circuit 1996.
3 Cruzan v. Director, Mo. Dept. of Health, 497 US 261 - Supreme Court 1990.
4 2 H. de Bracton (c. 1250) reprinted in On the Laws and Customs of England 423 (S. Thorne trans.,
1968).
5 William Blackstone, 4 Commentaries ch. 14, *189. “[T]he suicide is guilty of a double offence; one
spiritual, in invading the prerogative of the Almighty, and rushing into his immediate presence
uncalled for; the other temporal, against the king, who hath an interest in the preservation of all his
subjects; the law has therefore ranked this among the highest crimes, making it a peculiar species of
felony, a felony committed on one's self.”
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Fourteenth Amendment, have abolished this criminalization.6 The Fourteenth

Amendment, although protecting the right to die, was assumed at the time of its

adoption to outlaw the assisting of a suicide.7 The first explicit statute outlawing

assisted suicide was passed in 1828 in New York.8

In a case of first impression concerning this topic, Nancy Beth Cruzan was

rendered unconscious in a car accident and taken to the hospital to be placed on

artificial feeding and hydration. Her parents and legal guardians sought a court

order to withdraw her from this medical treatment. The initial decision by the

Missouri trial court found that Cruzan had a right protected under State and Federal

constitutions to withdraw from such treatment.9 The Supreme Court of Missouri, en

banc, reversed this decision, stating that was that there was “no clear and

convincing evidence of Nancy’s desire to have life-sustaining treatment withdrawn

under such circumstances”.10 Certiorari had been granted and this case became the

first to address whether someone’s determination of the time and manner of their

own death is a constitutionally-protected liberty interest.11 It is held that the Due

Process clause of the Fourteenth Amendment gives a competent person the right to

6 1 F. Wharton, Criminal Law § 122 (6th rev. ed. 1868).
7 U.S. Const. am. 14.
8 Act of Dec. 10, 1828, ch. 20, § 4, 1828 N. Y. Laws 19, prohibiting the “furnish[ing] another person
with any deadly weapon or poisonous drug, knowing that such person intends to use such weapon or
drug in taking his own life."
9 Missouri Living Will statute, Mo. Rev. Stat. § 459.055.1 et seq. (1986) “Each person has the primary
right to request or refuse medical treatment subject to the state's interest in protecting innocent
third parties, preventing homicide and suicide and preserving good ethical standards in the medical
profession.”
10 Cruzan By Cruzan v. Harmon, 760 SW 2d 408 - Mo: Supreme Court 1988.
11 Id.
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refuse medical treatment12 because the interests of the person in Cruzan’s case and

cases such as hers outweigh the interests of the state. These state interests are

“preservation of life, prevention of homicide and suicide, the protection of interests

of innocent third parties and the maintenance of the ethical integrity of the medical

profession”.13 In this case, the only state interest involved is the preservation of life.

However, there is no constitutionally protected right of an incompetent person to

refuse medical treatment, as there has been proven for a competent person to

have.14 The Supreme Court of the United States, therefore, affirmed the decision of

the Missouri Supreme Court.15 This case raised several questions concerning the

right to die. The competency of the patient involved must be considered, and a

distinction must be made between passively allowing one to die of natural causes,

versus actively hastening the patient’s death through lethal medication or the like.

The first case to arise dealing specifically with hastening the death of a

terminally ill patient with the use of lethal medication was Compassion in Dying v.

State of Washington. The plaintiffs included Compassion in Dying, a nonprofit

organization in Washington dedicated to providing emotional support and

counseling to terminally ill patients, a group of four physicians, and a group of three

terminally ill patients who died before the case was decided.16 The patients were

seeking to hasten their deaths with medication, seeing as they had no foreseeable

chance of recovery. A previously passed act, The Washington Natural Death Act,

12 U.S. Const. am. 14 “nor shall any state deprive any person of life, liberty, or property, without due
process of law.”
13 See Section 459.055(1), RSMo 1986; Brophy, 497 N. E. 2d at 634.
14 Jacobson v.Massachusetts, 197 U. S. 11, 24-30 (1905),
15 Cruzan v. Director, Mo. Dept. of Health, 497 US 261 - Supreme Court 1990.
16 Compassion in Dying v. State of WA, 49 F. 3d 586 - Court of Appeals, 9th Circuit 1995.
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affirms the right to refuse life-saving treatment17, but does not support the right to

physician-assisted suicide.18 The plaintiffs were challenging the constitutionality of

a similar Washington statute dealing with assisted suicide.19 The district court came

to the consensus that the statute was a violation of the Constitution of the United

States, on the grounds that it violated the Due Process Clause of the Fourteenth

Amendment20 and the Equal Protection Clause of the Fourteenth Amendment, which

state that people in similar situations be treated similarly.21 The state of Washington

appealed, and in a three-judge panel, the Ninth Circuit of the United States Court of

Appeals reversed the district court decision.22 This was ruled because physician-

assisted suicide was not considered to hold due process liberty interest.23 The

process of determining whether or not a liberty interest is protected under the Due

Process Clause is a difficult one; the final decision is heavily impacted by the base

tenets of the United States and the constantly evolving ethics and values of our

nation. Strict scrutiny must be applied because the statute trying to limit a

fundamental right must be “justified only by a compelling state interest.”24 A life or

death matter such as the topic at hand creates such a decision even more difficult to

17 RCW 70.122.030 “(1) Any adult person may execute a directive directing the withholding or
withdrawal of life-sustaining treatment in a terminal condition or permanent unconscious
condition.”
18 RCW 70.122.100 “Nothing in this chapter shall be construed to condone, authorize, or approve
mercy killing, lethal injection, or active euthanasia.”
19 Wash.Rev.Code 9A.36.060. “Promoting a suicide attempt (1) A person is guilty of promoting a
suicide attempt when he knowingly causes or aids another person to attempt suicide. (2) Promoting
a suicide is a Class C felony.”
20 U.S. Const. am. 14 “nor shall any state deprive any person of life, liberty, or property, without due
process of law.”
21 U.S. Const. am. 14 “nor deny to any person within its jurisdiction the equal protection of the laws.”
22 Compassion in Dying v. State of WA, 49 F. 3d 586 - Court of Appeals, 9th Circuit 1995.
23 Compassion in Dying v. State of Wash., 79 F. 3d 790 - Court of Appeals, 9th Circuit 1996.
24 Compassion in Dying v. State of WA, 49 F. 3d 586 - Court of Appeals, 9th Circuit 1995.
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make objectively. Often, what results is a utilitarian-like balancing test of the

patient’s rights and the state’s interest to ultimately conclude which outweighs the

other.25

Another seminal case in the assisted suicide debate is Vacco v. Quill, in which

various physicians disagreed with the constitutionality of a New York prohibition of

assisted suicide, implemented in 1965.26 Since it had been established in previous

cases that refusing life-saving medical treatment is a constitutionally protected

right, the physicians argued that physician-assisted suicide resulted in the same

conclusion of death, and should therefore be protected under the Equal Protection

Clause.27 The District Court disagreed with this statement; however, the Court of

Appeals for the Second Circuit reversed.28 Certiorari was granted29, and the United

States Supreme Court reversed the judgment of the Court of Appeals. It was found

that the Equal Protection Clause does not create any substantive rights; rather, it

rules that States must treat like legal cases alike, rather than situations.30 This case

is a prime example of how most state legislatures take care to discern refusal of life-

saving medical treatment from actively hastening death with medication. While

25 Cruzan By Cruzan v. Harmon, 760 SW 2d 408 - Mo: Supreme Court 1988.
26https://www.health.ny.gov/regulations/task_force/reports_publications/when_death_is_sought/c
hap4.htm
27 Vacco v. Quill, 521 US 793 - Supreme Court 1997.
28 80 F. 3d 716 (1996). "those in the final stages of terminal illness who are on life-support systems
are allowed to hasten their deaths by directing the removal of such systems; but those who are
similarly situated, except for the previous attachment of life-sustaining equipment, are not allowed to
hasten death by self-administering prescribed drugs."
29 518 U. S. 1055 (1996).
30 San Antonio Independent School Dist. v. Rodriguez, 411 U. S. 1, 33 (1973).

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refusal of treatment has come to be accepted by most, the active hastening of death

through administration of lethal medication is still controversial.

A more recent case, Gonzales v. Oregon, was influential in that it defended

this use of lethal medication to hasten a terminally ill patient’s death.31 Oregon was

the first state to explicitly legalize physician-assisted suicide when voters enacted

the Oregon Death With Dignity Act in 1994.32 The Controlled Substances Act is a

federal statute that regulates what medications physicians prescribe; this has been

interpreted to refer to those medications used in physician-assisted suicide as

well.33 However, an Interpretive Rule issued by Attorney General Ashcroft on

November 9, 2001, ruled that physician-assisted suicide is not a viable medical

procedure held lawful under the Controlled Substances Act.34 This was challenged in

federal court, and the Court of Appeal for the Ninth Circuit held the Interpretive

Rule invalid.35 The medical procedure, regulated by the state legislature of Oregon,

could not be made a federal offense. The Government was granted certiorari.36 The

Attorney General was found not to possess the authority to define medical

standards for the treatment of patients, and therefore not allowed to delegitimize

the procedure of physician-assisted suicide. Furthermore, the Controlled Substances

Act was initially enacted by Congress to “conquer drug abuse and to control the

legitimate and illegitimate traffic in controlled substances.”37 Beyond this power,

31 Gonzales v. Oregon, 546 US 243 - Supreme Court 2006.
32 Ore. Rev. Stat. § 127.800 et seq. (2003).
33 84 Stat. 1242, as amended, 21 U.S.C. § 801 et seq.
34 66 Fed. Reg. 56,607 (2001).
35 Oregon v. Ashcroft, 368 F. 3d 1118 - Court of Appeals, 9th Circuit 2004.
36 543 U.S. 1145 (2005).
37 Gonzales v. Raich, 545 US 1 - Supreme Court 2005, at 12.
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there is no connection in the statute to regulate the practice of general medicine.

The judgment of the Court of Appeals was affirmed, and Oregon’s Death With

Dignity Act was upheld.38 This decision, one that affirmed the legality of physician-

assisted suicide, is a pivotal case that could influence later cases and lead to a more

widespread legal and moral acceptance of the medical procedure.

As medical procedures and views of suicide have evolved from the beginning

of law, physician-assisted suicide is constantly being reconsidered in legal cases. It is

extremely uncommon for such cases to arrive at a final decision without further

review or rehearing. All of the cases presented in this paper required a writ of

certiorari because the conflict between the opinions surrounding the topic is so

apparent. Currently, there are five states that have legalized the procedure. State

law dictates its legality in Oregon, Vermont, Washington, and California, and it is

available to patients in Montana through a court decision.39 Even after these cases, it

is apparent that the debate surrounding physician-assisted suicide is continuous

and, as of yet, nationally unresolved.

38 Gonzales v. Oregon, 546 US 243 - Supreme Court 2006.
39 http://www.cnn.com/2014/11/26/us/physician-assisted-suicide-fast-facts/index.html
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Table of Authorities

Bix, Brian. “Physician Assisted Suicide and the United States Constitution.” The
Modern Law Review, vol. 58, no. 3, 1995, pp. 404–411.,
www.jstor.org/stable/1096538.

"Chapter 4 - Decisions at Life's End: Existing Law." New York State. Department of
Health, Apr. 2011. Web. 15 Apr. 2017.
<https://www.health.ny.gov/regulations/task_force/reports_publications/w
hen_death_is_sought/chap4.htm>.

Keown, John. “No Constitutional Right to Physician-Assisted Suicide?” The
Cambridge Law Journal, vol. 56, no. 3, 1997, pp. 506–509.,
www.jstor.org/stable/4508373.

"Physician-Assisted Suicide Fast Facts." CNN. Cable News Network, 07 June 2016.
Web. 12 Apr. 2017. <http://www.cnn.com/2014/11/26/us/physician-
assisted-suicide-fast-facts/index.html>.