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