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Vacco v. Quill
Supreme Court of the United States (1996)

II

THE DECISIONS BELOW, IF AFFIRMED,
ARE LIKELY TO LEAD TO A BROAD EXPANSION
OF THE RIGHT TO ASSISTED SUICIDE
AND EUTHANASIA

On their faces, the Ninth and Second Circuit decisions are extremely narrow. They apply only to fully competent terminally ill patients (or, in the case of Quill, patients in the "final stages" of terminal illness) who have clearly expressed their desire to commit suicide, and who seek only such assistance from their physicians as is necessary for them to self-administer a lethal dosage of drugs. However, the language of the decisions (especially the expansive statements of the Ninth Circuit), and their reasoning (especially the equal protection analysis of the Second Circuit), could well result in the expansion of the right to assisted suicide and euthanasia far beyond the narrow confines in which the cases arose. The Court would do well to ponder the ultimate destination of the paths the Ninth and Second Circuits would have the constitution embark.

1. The Ninth Circuit's Candid Acknowledgments

The three patient-plaintiffs in Compassion in Dying (in this Court as Glucksberg) were mentally competent, whose illnesses were deemed "terminal" because their doctors had concluded they were irreversible and would likely cause death within a relatively short time, and who clearly articulated their desire to have their doctors furnish them with a lethal dosage of medication for their own self-administration. The Ninth Circuit, however, candidly acknowledged that its ruling in their favor was not so narrowly limited.

For one thing, said the court, it is not only doctors whose prescriptive services are protected by the constitutional right to assisted suicide, but also "those whose services are essential to help the terminally ill patient obtain and take [the lethal prescription] and who act under the supervision or direction of a physician... That includes the pharmacist who fills the prescription; the health care worker who facilitates the process; the family member or loved one who opens the bottle, places the pills in the patient's hand, advises him how many pills to take, and provides the necessary tea, water or other liquids; or the persons who help the patient to his death bed and provide the love and comfort so essential to a peaceful death." 79 F.3d at 838 n.140. In addition, the court noted that its holding encompassed the decisions of persons who are terminally ill not only as that term is colloquially understood, but also as it is statutorily defined -- in Washington Sate, for example, persons who are in an irreversible coma or a persistent vegetative state, regardless of their life expectancy. 79 F.3d at 831.

Significant though these acknowledgements are, it is in two other respects that the Ninth Circuit's expansive articulation of its position is especially noteworthy: (a) the court's view on physician-administered poison; and (b) the court's recognition of the authority of surrogate decision makers.

(a) While the court expressly left for "future cases" the issue of a doctor's right to inject a lethal dosage into a patient incapable of self-administering the poison, it candidly indicated its view that this too would be constitutionally protected:

"We do not dispute the dissent's contention that the prescription of lethal medication by physicians for use by terminally ill patients who wish to die does not constitute a clear point of demarcation between permissible and impermissible medical conduct. We agree that it may be difficult to make a principled distinction between physician-assisted suicide and the provision to terminally ill patients of other forms of life-ending medical assistance, such as the administration of drugs by a physician. We recognize that in some instances, the patient may be unable to self-administer the drugs and that administration by the physician, or a person acting under his direction or control, may be the only way the patient may be able to receive them... We would be less than candid... if we did not acknowledge that for present purposes we view the critical line in right-to-die cases as the one between the voluntary and involuntary termination of an individual's life. In the first case -- volitional death -- the physician is aiding or assisting a patient who wishes to exercise a liberty interest, and in the other -- involuntary death -- another person acting on his own behalf, or, in some instances society's, is determining that an individual's life should no longer continue. We consider it less important who administers the medication than who determines the medication than who determines whether the terminally ill person's life shall end." 79 F.3d at 831-32 (footnotes omitted).

(b) The court emphasized that the constitutional demarcation it would draw between "volitional death" and "involuntary death" was not intended to imply that the right to request assistance in committing suicide is necessarily personal to the patient himself. "[W]e should make it clear," wrote the court, "that a decision of a duly appointed surrogate decision maker is for all legal purposes the decision of the patient himself." 79 F.3d at 832 n.120. (Indeed, noted the court, under certain circumstances, Washington law also regards the decisions of a legal guardian as the decision of the patient himself, 79 F.3d at 818 (citing, inter alia, In re Guardianship of Grant, 747 P.2d 445 (Wash. 1987), in which the Washington Supreme Court authorized a legal guardian to "make a good-faith determination of whether the withholding of life sustaining treatment would serve the incompetent patient's best interests" where the patient's own wishes cannot be ascertained, 747 P.2d at 457). Presumably, therefore, just as a duly appointed surrogate decision maker could request a lethal prescription on a patient's behalf, so too could a legal guardian in cases where his decisions are treated as the patient's own.)

It should be readily apparent that the Ninth Circuit's caveat about the authority of surrogate decision makers undermines considerably its bright line distinction between "volitional death" and "involuntary death". Professor Tribe has summarized the three types of situations in which surrogate decision makers have exercised "substituted judgment" on behalf of incompetent patients:

"There are basically three approaches courts have taken to decisionmaking in treatment decisions for incompetent patients. First, if the patient had when competent stated what decision she would have wanted made in this situation, those wishes tend to be deemed decisive. Second, where there is no direct evidence of the patient's preferences, if there is a relative or a friend who was close enough to the patient to be able to surmise how she would have decided, this relative or friend may be allowed to choose in the name of the patient. Third, if there is no basis for deciding what the patient would have decided, a decision is made according to what would be in the patient's 'best interests', as defined by the court, by the patient's family, or by a court-appointed guardian."

L. Tribe, American Constitutional Law, 15-11 at 1368-69 (2d Ed. 1988) (footnotes omitted). As Professor Tribe points out, however, "[a]ll three forms of 'substituted judgment' are at best imperfect ways to effectuate the patient's right of self-determination. No matter how much evidence there is of subjective intent, how well the guardian knew the patient, and how well-intentioned the patient's guardian, family, and physician may be, there will always be some residual doubt that the decision made in fact expresses what the patient would have wanted done." Id. at 1369 (emphasis added; footnote omitted).

In sum, the Ninth Circuit would apparently extend the constitutional right of assisted suicide to cases involving a surrogate decision maker's request, based on his admittedly imperfect knowledge of an incapacitated terminal patient's wishes, or perhaps even on his own assessment of the patient's best interests, to have a doctor kill the patient. This brings to mind a prescient passage elsewhere in Professor Tribe's treatise:

"As courts become more sympathetic to arguments that persons have a right to die with dignity and that the state interest in the preservation of life may sometimes be subordinated to an individual's right to die, there is a possibility that doctrines which are intended to facilitate the exercise of this right will be exploited, either intentionally or unwittingly, to practice the most terrible discrimination against handicapped persons who require medical treatment to stay alive: judgments that their disabilities are such that persons afflicted with them would be better off dead and thus should be 'allowed' to die. The most pernicious discriminatory bias against the disabled that one can imagine -- the desire of families or others to dispose of handicapped persons whom they simply consider undesirable -- might be effectively disguised behind their requests, made in the name of the disabled's right to die, that medical treatment be withheld from the disabled. The right to die, in other words, may offer a convenient pretext for profoundly discriminatory decisionmaking."

L. Tribe, supra, 16-31 at 1598-99 (footnotes omitted).

2. Implications of the Second Circuit's Equal Protection Analysis

The Second Circuit took pains to give its ruling a more moderate veneer than that of its sister court. The court expressly rejected any substantive due process right to assisted suicide, 80 F.3d at 723-25; determined that the equal protection claim would be judged under the less exacting standard of rational basis scrutiny, id. at 727; intimated that the right to assisted suicide would not authorize a physician to inject a lethal dosage into a patient incapable of self-administering the dosage, id at 730 n.3; said nothing about the right of a surrogate decision maker to request suicide assistance on behalf of an incapacitated patient; and limited the terms of its holding to patients in the final stages of terminal illness, id. at 731.

In fact, however, it may well be that the Second Circuit's ruling creates an even more expansive right to assisted suicide than does the Ninth Circuit's. That is because of a basic difference between the respective judicial inquiries under the due process and equal protection clauses.

As the Ninth Circuit pointed out, the due process constitutional claim of a patient seeking suicide assistance will be determined, like all substantive due process claims, by weighing the strength of the various competing interests present in any given circumstance. The court's calibration of those competing interests led it to its bottom line determination: "The liberty interest at issue here...in the case of the terminally ill, is at its peak. Conversely, the state interests, while equally important in the abstract, are for the most part at a low point here." 79 F.3d at 837. While Agudath Israel believes, as elaborated infra, that the Ninth Circuit incorrectly undervalued the state's interest in preserving the life of even terminally ill persons there is at least some room for argument that the due process balancing framework will enable courts, in cases involving non-terminal patients where the balance of competing interests tips in favor of the state, to draw the line: "So far down the slope, but no farther." The equal protection framework embraced by the Second Circuit, in contrast, would appear to include no such line-drawing braking mechanism.

The relevant equal protection inquiry here is not how strong the state's interest is in preserving life in any given context, but whether treating "similarly circumstanced" persons differently is rationally related to a legitimate state interest. As the Court stated in Hooper v. Bernalillo County Assessor, 472 U.S. 612 (1985): "When a state distributes benefits unequally, the distinctions it makes are subject to scrutiny under the Equal Protection Clause of the Fourteenth Amendment. Generally, a law will survive that scrutiny if the distinction rationally furthers a legitimate state purpose." Id. at 618 (footnote omitted; emphasis added). Accordingly, once one accepts the Second Circuit's conclusion that a patient who seeks termination of life support and a patient who seeks poison are "similarly circumstanced persons" who must be treated identically unless the state can demonstrate that treating them differently rationally advances a legitimate state interest, 80 F.3d at 729; and once one accepts the court's additional conclusion that no such rational basis of distinction exists when the two persons are in the final stages of terminal illness, id. at 730-31 -- there is no readily apparent logical way of drawing lines anywhere along the slope.

In reaching its holding that the prohibition against assisted suicide, as applied to final-stage terminally ill patients, violates the equal protection clause, the Second Circuit posed a series of dramatic questions, and an equally dramatic answer:

"But what interest can the state possibly have in requiring the prolongation of a life that is all but ended? Surely, the state's interest lessens as the potential for life diminishes... And what business is it of the state to require the continuation of agony when the result is imminent and inevitable? What concern prompts the state to interfere with a mentally competent patient's 'right to define [his] own concept of existence, of meaning, of the universe, and of the mystery of human life' [citation omitted], when the patient seeks to have drugs prescribed to end life during the final stages of a terminal illness? The greatly reduced interest of the state in preserving life compels the answer to these questions: 'None.'" 80 F.3d at 729-30.

The questions are indeed dramatic, and so is the response -- but they are also highly misleading. For they imply that the equal protection analysis would be different in cases where the state's interest in preserving life would be stronger than the Second Circuit deems it to be at the final stages of terminal illness. In fact, however, since the relevant inquiry is not whether the state has a rational basis to preserve life, but whether it has a rational basis to distinguish between patients who refuse life support and patients who seek the means to commit suicide, it should make no equal protection difference whatsoever how far along the patient's terminal illness has progressed, or even whether he is terminally ill altogether. The strength of the state's interest in preserving life is simply not relevant to the equal protection inquiry, for it does not speak to any distinction the law might draw between the two patients "similarly circumstanced."

The implication of the Second Circuit's ruling, therefore, is that wherever the law permits an individual to forgo life support, equal protection demands that it also permit him to request a lethal prescription. The Second Circuit's apparent moderation is only skin deep; beneath its deceptively mild surface lies constitutional radicalism. Consider the body of New York law implicated most directly by the ruling below. The right of competent persons to decline or discontinue life-sustaining medical intervention was first established at common law in Schloendorf v. Society of New York Hospital, 211 N.Y. 125, 129 (1914), where Judge Cardozo enunciated the basic doctrine of personal autonomy in medical decision-making: "[E]very human being of adult years and sound mind has a right to determine what shall be done with his body; and a surgeon who performs an operation without his patient's consent commits an assault, for which he is liable in damages." In re Storar, 52 N.Y. 363, 376-77, cert. denied, 454 U.S. 858 (1981), makes clear that the common law right of personal autonomy includes the right to refuse treatment necessary to preserve one's life. The New York courts have not limited such right to patients who are terminally ill -- certainly not to patients who are in the final stages of their terminal illness. Given the Second Circuit's rejection of any distinction between refusing life support and requesting poison, if a young patient with a good prognosis for recovery enjoys the common law right to refuse a life-saving operation, should he not also enjoy the right to a lethal prescription?

The same question will apply when a third party is legally authorized to make a decision on an incapacitated patient's behalf. Under New York common law, "the right to decline treatment is personal and...could not be exercised by a third party when the patient is unable to do so" unless there is "clear and convincing evidence" that the incapacitated patient would have refused life support. Matter of Westchester County Medical Center, 72 N.Y. 2d 517, 528-29 (1988). New York's legislature, however, has started moving away from the "clear and convincing evidence" standard. Most notably, in 1990, a statute was enacted empowering a duly designated health care agent to make virtually any life-and-death treatment decision on behalf of his incapacitated principal, irrespective of the principal's medical condition or prognosis. Such decisions are to be made on the basis of the principal's wishes; or, where the principal's wishes "are not reasonably known and cannot with reasonable diligence be ascertained," on the basis of the principal's "best interests." N.Y. Public Health Law 2982 (McKinney's 1993). Indeed, the state legislature has been considering proposed new legislation developed by the New York State Task Force on Life and the Law, introduced in the 1995-96 legislative session as S. 5020 / A.6791, which would empower surrogates -- third parties appointed by the law, not by the patient -- to make decisions under certain medical circumstances to refuse life-sustaining treatment where the patient's "best interests" would be so served. The Second Circuit's equal protection analysis, it would seem, should empower such agents or third party surrogates to ask that the patient be provided with poison as well, so long as they deem it to be in the patient's "best interests."

There is yet one other noteworthy aspect of New York law: the legal obligation of an individual health care provider to carry out the instructions of patients and their duly appointed health care agents; or, if doing so would violate the provider's religious beliefs or sincerely held moral convictions, to cooperate in facilitating transfer of the patient to another medical practitioner who is prepared to carry out such wishes. N.Y. Public Health Law 2984 (McKinney's 1993). If a doctor has religious beliefs or moral convictions that preclude him from helping the patient commit suicide, would not the Second Circuit's equal protection analysis require his cooperation in transferring the patient to a doctor who has no such qualms?

New York is not atypical in its recognition of a patient's right to decline life-sustaining interventions, either personally or through an agent or surrogate; if anything, New York's common law takes a harder line than most other states in insisting on clear and convincing evidence of an incapacitated patient's wishes. See Cruzan v. Director, Missouri Dept. of Health, supra, 497 U.S. at 270-77. If the Second Circuit's ruling is permitted to stand, its impact will be widespread, profound -- and, in our view, devastating.

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