OCTOBER TERM, 1996
Syllabus
WASHINGTON ET AL.
v. GLUCKSBERG ET AL.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH
CIRCUIT
No. 96-110. Argued January 8, 1997-Decided June 26,1997
It has always been a crime to assist a suicide in the State of
Washington.
The State's present law makes "[p]romoting 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."
Respondents, four Washington physicians who occasionally treat
terminally ill, suffering patients, declare that they would assist
these patients in ending their lives if not for the State's
assisted-suicide ban. They, along with three gravely ill plaintiffs
who have since died and a nonprofit organization that counsels
people considering physician-assisted suicide, filed this suit
against petitioners, the State and its Attorney General, seeking a
declaration that the ban is, on its face, unconstitutional. They
assert a liberty interest protected by the Fourteenth Amendment's
Due Process Clause which extends to a personal choice by a mentally
competent, terminally ill adult to commit physician-assisted
suicide. Relying primarily on
Planned Parenthood of Southeastern
Pa. v.
Casey, 505 U. S. 833, and
Cruzan v.
Director, Mo. Dept. of Health, 497 U. S. 261, the
Federal District Court agreed, concluding that Washington's
assistedsuicide ban is unconstitutional because it places an undue
burden on the exercise of that constitutionally protected liberty
interest. The en banc Ninth Circuit affirmed.
Held: Washington's prohibition against "caus[ing]" or
"aid[ing]" a suicide does not violate the Due Process Clause. Pp.
710-736.
(a) An examination of our Nation's history, legal traditions,
and practices demonstrates that Anglo-American common law has
punished or otherwise disapproved of assisting suicide for over 700
years; that rendering such assistance is still a crime in almost
every State; that such prohibitions have never contained exceptions
for those who were near death; that the prohibitions have in recent
years been reexamined and, for the most part, reaffirmed in a
number of States; and that the President recently signed the
Federal Assisted Suicide Funding Restriction Act of 1997, which
prohibits the use of federal funds in support of physician-assisted
suicide. Pp. 710-719.
(b) In light of that history, this Court's decisions lead to the
conclusion that respondents' asserted "right" to assistance in
committing suicide is not a fundamental liberty interest protected
by the Due Process Clause.
703
The Court's established method of substantive-due-process
analysis has two primary features: First, the Court has regularly
observed that the Clause specially protects those fundamental
rights and liberties which are, objectively, deeply rooted in this
Nation's history and tradition.
E. g., Moore v.
East
Cleveland, 431 U.
S. 494, 503 (plurality opinion). Second, the Court has required
a "careful description" of the asserted fundamental liberty
interest.
E. g., Reno v.
Flores, 507 U. S. 292, 302. The
Ninth Circuit's and respondents' various descriptions of the
interest here at stake-e. g., a right to "determin[e] the time and
manner of one's death," the "right to die," a "liberty to choose
how to die," a right to "control of one's final days," "the right
to choose a humane, dignified death," and "the liberty to shape
death" -run counter to that second requirement. Since the
Washington statute prohibits "aid[ing] another person to attempt
suicide," the question before the Court is more properly
characterized as whether the "liberty" specially protected by the
Clause includes a right to commit suicide which itself includes a
right to assistance in doing so. This asserted right has no place
in our Nation's traditions, given the country's consistent, almost
universal, and continuing rejection of the right, even for
terminally ill, mentally competent adults. To hold for respondents,
the Court would have to reverse centuries of legal doctrine and
practice, and strike down the considered policy choice of almost
every State. Respondents' contention that the asserted interest
is consistent with this Court's substantive-due-process
cases, if not with this Nation's history and practice, is
unpersuasive. The constitutionally protected right to refuse
lifesaving hydration and nutrition that was discussed in
Cruzan,
supra, at 279, was not simply deduced from abstract concepts of
personal autonomy, but was instead grounded in the Nation's history
and traditions, given the common-law rule that forced medication
was a battery, and the long legal tradition protecting the decision
to refuse unwanted medical treatment. And although
Casey
recognized that many of the rights and liberties protected by the
Due Process Clause sound in personal autonomy, 505 U. S., at 852,
it does not follow that any and all important, intimate, and
personal decisions are so protected, see
San Antonio Independent
School Dist. v.
Rodriguez, 411 U. S. 1, 33-34.
Casey did not suggest otherwise. Pp. 719-728.
(c) The constitutional requirement that Washington's
assisted-suicide ban be rationally related to legitimate government
interests, see,
e. g.,
Heller v.
Doe, 509 U. S. 312, 319-320,
is unquestionably met here. These interests include prohibiting
intentional killing and preserving human life; preventing the
serious public-health problem of suicide, especially among the
young, the elderly, and those suffering from untreated pain or from
depression or other mental disorders; protecting
704
Syllabus
the medical profession's integrity and ethics and maintaining
physicians' role as their patients' healers; protecting the poor,
the elderly, disabled persons, the terminally ill, and persons in
other vulnerable groups from indifference, prejudice, and
psychological and financial pressure to end their lives; and
avoiding a possible slide toward voluntary and perhaps even
involuntary euthanasia. The relative strengths of these various
interests need not be weighed exactingly, since they are
unquestionably important and legitimate, and the law at issue is at
least reasonably related to their promotion and protection. Pp.
728-735.
79 F.3d
790, reversed and remanded.
REHNQUIST, C. J., delivered the opinion of the Court, in which
O'CONNOR, SCALIA, KENNEDY, and THOMAS, JJ., joined. O'CONNOR, J.,
filed a concurring opinion, in which GINSBURG and BREYER, JJ.,
joined in part,
post, p. 736. STEVENS, J.,
post, p.
738, SOUTER, J.,
post, p. 752, GINSBURG, J.,
post, p.
789, and BREYER, J.,
post, p. 789, filed opinions concurring
in the judgment.
William L. Williams, Senior Assistant Attorney General of
Washington, argued the cause for petitioners. With him on the
briefs were
Christine O.
Gregoire, Attorney General,
and
William Berggren Collins, Senior Assistant Attorney
General.
Acting Solicitor General Dellinger argued the cause for the
United States as amicus curiae urging reversal. With him on the
brief were Assistant Attorney General Hunger, Deputy Solicitor
General Waxman, Deputy Assistant Attorney General Preston, Irving
L. Gornstein, and Barbara
Kathryn L. Tucker argued the cause for respondents.
With her on the brief were David J. Burman, Kari Anne Smith, and
Laurence H. Tribe. *
*Briefs of
amici curiae urging reversal were filed for
the State of California et al. by
Daniel E. Lungren,
Attorney General of California,
Robert L. Mukai, Chief
Assistant Attorney General,
Alvin J.
Korobkin, Senior
Assistant Attorney General,
Thomas S.
Lazar, Deputy
Attorney General, and by the Attorneys General for their respective
jurisdictions as follows:
Jeff Sessions of Alabama, Gale A. Norton of Colorado, Robert A.
Butterworth of Florida, Michael J. Bowers of Georgia, James E. Ryan
of Illinois, Thomas J. Miller of Iowa, Richard P. Ieyoub of
Louisiana, J. Joseph Cur-
705
CHIEF JUSTICE REHNQUIST delivered the opinion of the Court.
The question presented in this case is whether Washington's
prohibition against "caus[ing]" or "aid[ing]" a suicide
ran, Jr., of Maryland,
Frank J.
Kelley of
Michigan,
Mike Moore of Mississippi,
Joseph P.
Mazurek of Montana,
Don Stenberg of Nebraska,
Jeffrey
R. Howard of New Hampshire,
Dennis C.
Vacco of
New York,
Pedro R. Pierluisi of Puerto Rico,
Charles
Molony Condon of South Carolina,
Mark W Barnett of South
Dakota,
Charles W Burson of Tennessee, and
James S.
Gilmore III of Virginia; for the State of Oregon by
Theodore R. Kulongoski, Attorney General,
Thomas A.
Balmer, Deputy Attorney General,
Virginia L. Linder,
Solicitor General, and
Stephen K. Bushong, Assistant
Attorney General; for Wayne County, Michigan, by
John D.
O'Hair and
Timothy A. Baughman; for the District
Attorney of Milwaukee County, Wisconsin, by
E. Michael McCann,
pro se, and
John M. Stoiber; for Agudath Israel of
America by
David Zwiebel and
Morton M. Avigdor; for
the American Association of Homes and Services for the Aging et al.
by
Joel G.
Chefitz and
Robert K. Niewijk; for
the American Center for Law and Justice by
Jay Alan Sekulow,
James M. Henderson, Sr., Walter M. Weber, Keith A. Fournier,
John G.
Stepanovich, and
Thomas P. Monaghan; for
the American Geriatrics Society by
John H. Pickering and
Joseph E. Schmitz; for the American Hospital Association by
Michael K. Kellogg and
Margaret J.
Hardy; for
the American Medical Association et al. by
Carter G.
Phillips, Mark E. Haddad, Paul E. Kalb, Katherine L. Adams, Kirk
B. Johnson, and
Michael L. Ile; for the American Suicide
Foundation by
Ellen H. Moskowitz, Edward R. Grant, and
John F.
Cannon; for the Catholic Health Association
of the United States by
James A. Serritella, James C.
Geoly, Kevin R. Gustafson, Thomas C.
Shields, Peter M.
Leibold, and
Charles S.
Gilham; for the Catholic
Medical Association by
Joseph J.
Frank, Sergio
Alvarez-Mena III, and
Peter Buscemi; for the Christian
Legal Society et al. by
Edward J.
Larson, Kimberlee Wood
Colby, and
Steven T. McFarland; for the Evangelical
Lutheran Church in America by
Edward McGlynn Gaffney, Jr., Susan
D. Reece Martyn, Henry J.
Bourguignon, and
Phillip H.
Harris; for the Family Research Council by
Cathleen A.
Cleaver, Mark A. Rothe, and
Edward R. Grant; for the
Institute for Public Affairs of the Union of Orthodox Jewish
Congregations of America et al. by
Richard B. Stone; for the
Legal Center for Defense of Life, Inc., et al. by
Dwight G.
Duncan and
Michael P. Tierney; for the National
Association of Prolife Nurses et al. by
Jacqulyn Kay Hall;
for the National Catholic Office for Persons with Disabilities et
al. by
James Bopp, Jr., Thomas J.
Marzen, Daniel
Avila, and
Jane E. T. Brockmann; for the National
Hospice Organization by
E. Barrett Pretty-
706
offends the Fourteenth Amendment to the United States
Constitution. We hold that it does not.
It has always been a crime to assist a suicide in the State of
Washington. In 1854, Washington's first Territorial Leg-
man, Jr.; for the National Legal Center for the Medically
Dependent & Disabled, Inc., et al. by
James Bopp, Jr.,
Thomas J.
Marzen, Daniel Avila, and
Jane E. T.
Brockmann; for the National Right to Life Committee, Inc., by
James Bopp, Jr., and
Richard E. Coleson; for the
National Spinal Cord Injury Association, Inc., by
Leonard F.
Zandrow, Jr., and
Calum B. Anderson; for the Project
on Death in America et al. by
Robert A. Burt; for the
Rutherford Institute by
Gregory D. Smith and
John W
Whitehead; for the Schiller Institute by
Max Dean; for
the United States Catholic Conference et al. by
Mark E.
Chopko; for Senator Orrin Hatch et al. by
Michael W
McConnell; for Members of the New York and Washington State
Legislatures by
Paul Benjamin Linton and
Clarke D.
Forsythe; for Bioethics Professors by
George J.
Annas; for Gary Lee, M. D., et al. by
James Bopp, Jr.,
Bary A. Bostrom, and
Richard E. Coleson; and for Richard
Thompson by
Mr. Thompson, pro se, and
Richard H.
Browne.
Briefs of
amici curiae urging affirmance were filed for
the American Civil Liberties Union et al. by
Cameron Clark,
Karen E. Boxx, and
Steven R. Shapiro; for Americans for
Death with Dignity et al. by
John R. Reese and
Page R.
Barnes; for the American Medical Student Association et al. by
John H. Hall; for the Center for Reproductive Law &
Policy by
Janet Benshoof and
Kathryn Kolbert; for the
Coalition of Hospice Professionals by
Gerald A. Rosenberg
and
Frances Kulka Browne; for the Council for Secular
Humanism et al. by
Ronald A. Lindsay; for Gay Men's Health
Crisis et al. by
Andrew I. Batavia; for the National Women's
Health Network et al. by
Sylvia A. Law; for 36 Religious
Organizations, Leaders, and Scholars by
Barbara McDowell and
Gregory A. Castanias; for the Washington State Psychological
Association et al. by
Edward C.
DuMont; for
Bioethicists by
Martin R. Gold and
Robert P. Mulvey;
for Law Professors by
Charles H. Baron, David A. Hoffman,
and
Joshua M. Davis; for State Legislators by
Sherry
F.
Colb; and for Julian M. Whitaker, M. D., by
Jonathan W
Emord.
Briefs of
amici curiae were filed for the American
College of Legal Medicine by
Miles J.
Zaremski, Bruce
C.
Nelson, and
Ila S.
Rothschild; for the
International Anti-Euthanasia Task Force by
Wesley J.
Smith; for the Southern Center for Law and Ethics by
Tony G.
Miller; for Surviving Family Members in
Support of Physician-Assisted Dying by
Katrin E. Frank, Robert
A. Free, and
Kathleen Wareham; and for Ronald Dworkin et
al. by
Mr. Dworkin, pro se, Peter L. Zimroth, Philip H. Curtis,
Kent A. Yalowitz, Anand Agneshwar, and
Abe Krash.
707
islature outlawed "assisting another in the commISSIOn of
self-murder." 1 Today, Washington law provides: "A person is guilty
of promoting a suicide attempt when he knowingly causes or aids
another person to attempt suicide." Wash. Rev. Code § 9A.36.060(1)
(1994). "Promoting a suicide attempt" is a felony, punishable by up
to five years' imprisonment and up to a $10,000 fine. §§
9A.36.060(2) and 9A.20.021(1)(c). At the same time, Washington's
Natural Death Act, enacted in 1979, states that the "withholding or
withdrawal of life-sustaining treatment" at a patient's direction
"shall not, for any purpose, constitute a suicide." Wash. Rev. Code
§ 70.122.070(1).2
Petitioners in this case are the State of Washington and its
Attorney General. Respondents Harold Glucksberg, M. D., Abigail
Halperin, M. D., Thomas A. Preston, M. D., and Peter Shalit, M. D.,
are physicians who practice in Washington. These doctors
occasionally treat terminally ill, suffering patients, and declare
that they would assist these patients in ending their lives if not
for Washington's assisted-suicide ban.3 In January 1994,
respondents, along with three gravely ill, pseudonymous plaintiffs
who have since died and
1 Act of Apr. 28, 1854, § 17, 1854 Wash. Laws 78 ("Every person
deliberately assisting another in the commission of self-murder,
shall be deemed guilty of manslaughter"); see also Act of Dec. 2,
1869, § 17, 1869 Wash. Laws 201; Act of Nov. 10, 1873, § 19, 1873
Wash. Laws 184; Criminal Code, ch. 249, §§ 135-136, 1909 Wash.
Laws, 11th Sess., 929.
2 Under Washington's Natural Death Act, "adult persons have the
fundamental right to control the decisions relating to the
rendering of their own health care, including the decision to have
life-sustaining treatment withheld or withdrawn in instances of a
terminal condition or permanent unconscious condition." Wash. Rev.
Code § 70.122.010 (1994). In Washington, "[a]ny adult person may
execute a directive directing the withholding or withdrawal of
life-sustaining treatment in a terminal condition or permanent
unconscious condition," § 70.122.030, and a physician who, in
accordance with such a directive, participates in the withholding
or withdrawal of life-sustaining treatment is immune from civil,
criminal, or professionalliability, § 70.122.051.
3 Glucksberg Declaration, App. 35; Halperin Declaration, id., at
49-50; Preston Declaration, id., at 55-56; Shalit Declaration, id.,
at 73-74.
708
Compassion in Dying, a nonprofit organization that counsels
people considering physician-assisted suicide, sued in the United
States District Court, seeking a declaration that Wash. Rev. Code §
9A.36.060(1) (1994) is, on its face, unconstitutional.
Compassion in Dying v.
Washington, 850 F. Supp. 1454,
1459 (WD Wash. 1994).4
The plaintiffs asserted "the existence of a liberty interest
protected by the Fourteenth Amendment which extends to a personal
choice by a mentally competent, terminally ill adult to commit
physician-assisted suicide."
Ibid. Relying primarily on
Planned Parenthood of Southeastern Pa. v.
Casey,
505 U. S. 833
(1992), and
Cruzan v.
Director, Mo. Dept. of Health,
497 U. S. 261
(1990), the District Court agreed, 850 F. Supp., at 1459-1462, and
concluded that Washington's assisted-suicide ban is
unconstitutional because it "places an undue burden on the exercise
of [that] constitutionally protected liberty interest."
Id.,
at 1465.5 The District Court also decided that the Washington
statute violated the Equal Protection Clause's requirement that"
'all persons similarly situated ... be treated alike.'"
Id.,
at 1466 (quoting
Cleburne v.
Cleburne Living Center,
Inc., 473 U. S.
432, 439 (1985)).
A panel of the Court of Appeals for the Ninth Circuit reversed,
emphasizing that "[i]n the two hundred and five years of our
existence no constitutional right to aid in killing
4John Doe, Jane Roe, and James Poe, plaintiffs in the District
Court, were then in the terminal phases of serious and painful
illnesses. They declared that they were mentally competent and
desired assistance in ending their lives. Declaration of Jane Roe,
id., at 23-25; Declaration of John Doe,
id., at 27-28;
Declaration of James Poe,
id., at 30-31;
Compassion in
Dying, 850 F. Supp., at 1456-1457.
5 The District Court determined that
Casey's "undue
burden" standard, 505 U. S., at 874 (joint opinion), not the
standard from
United States v.
Salerno, 481 U. S. 739, 745 (1987)
(requiring a showing that "no set of circumstances exists under
which the [law] would be valid"), governed the plaintiffs' facial
challenge to the assisted-suicide ban. 850 F. Supp., at
1462-1464.
709
oneself has ever been asserted and upheld by a court of final
jurisdiction."
Compassion in Dying v.
Washington,
49 F.3d
586, 591 (1995). The Ninth Circuit reheard the case en bane,
reversed the panel's decision, and affirmed the District Court.
Compassion in Dying v.
Washington, 79 F.3d
790, 798 (1996). Like the District Court, the en bane Court of
Appeals emphasized our
Casey and
Cruzan decisions. 79
F. 3d, at 813-816. The court also discussed what it described as
"historical" and "current societal attitudes" toward suicide and
assisted suicide, id., at 806-812, and concluded that "the
Constitution encompasses a due process liberty interest in
controlling the time and manner of one's death-that there is, in
short, a constitutionally-recognized 'right to die.'''
Id.,
at 816. After "[w]eighing and then balancing" this interest against
Washington's various interests, the court held that the State's
assisted-suicide ban was unconstitutional "as applied to terminally
ill competent adults who wish to hasten their deaths with
medication prescribed by their physicians."
Id., at 836,
837.6 The court did not reach the District Court's equal protection
holding.
Id., at 838.7 We granted certiorari, 518 U. S. 1057
(1996), and now reverse.
6 Although, as JUSTICE STEVENS observes,
post, at 739
(opinion concurring in judgments), "[the court's] analysis and
eventual holding that the statute was unconstitutional was not
limited to a particular set of plaintiffs before it," the court did
note that "[d]eclaring a statute unconstitutional as applied to
members of a group is atypical but not uncommon." 79 F. 3d, at 798,
n. 9, and emphasized that it was "not deciding the facial validity
of [the Washington statute]," id., at 797-798, and nn. 8-9. It is
therefore the court's holding that Washington's physician-assisted
suicide statute is unconstitutional as applied to the "class of
terminally ill, mentally competent patients,"
post, at 750
(STEVENS, J., concurring in judgments), that is before us
today.
7 The Court of Appeals did note, however, that "the equal
protection argument relied on by [the District Court] is not
insubstantial," 79 F. 3d, at 838, n. 139, and sharply criticized
the opinion in a separate case then pending before the Ninth
Circuit,
Lee v.
Oregon, 891 F. Supp. 1429 (Ore. 1995)
(Oregon's Death With Dignity Act, which permits
physician-assisted
710
I
We begin, as we do in all due process cases, by examining our
Nation's history, legal traditions, and practices. See,
e. g.,
Casey, supra, at 849-850;
Cruzan, supra, at 269-279;
Moore v.
East Cleveland, 431 U. S. 494, 503 (1977)
(plurality opinion) (noting importance of "careful 'respect for the
teachings of history' "). In almost every State-indeed, in almost
every western democracy-it is a crime to assist a suicide.8 The
States' assisted-suicide bans are not innovations. Rather, they are
longstanding expressions of the States' commitment to the
protection and preservation of all human life.
Cruzan,
supra, at 280 ("[T]he States-indeed, all civilized
nations-demonstrate their commitment to life by treating homicide
as a serious crime. Moreover, the major-
suicide, violates the Equal Protection Clause because it does
not provide adequate safeguards against abuse), vacated,
Lee
v.
Oregon, 107 F.3d
1382 (CA9 1997) (concluding that plaintiffs lacked Article III
standing).
Lee, of course, is not before us, any more than
it was before the Court of Appeals below, and we offer no opinion
as to the validity of the
Lee courts' reasoning. In
Vacco v.
Quill, post, p. 793, however, decided today,
we hold that New York's assisted-suicide ban does not violate the
Equal Protection Clause.
8See
Compassion in Dying v.
Washington, 79 F.3d
790, 847, and nn. 10-13 (CA9 1996) (Beezer, J., dissenting)
("In total, forty-four states, the District of Columbia and two
territories prohibit or condemn assisted suicide") (citing statutes
and cases);
Rodriguez v.
British Columbia (Attorney
General), 107 D. L. R. (4th) 342, 404 (Can. 1993) ("[A] blanket
prohibition on assisted suicide ... is the norm among western
democracies") (discussing assisted-suicide provisions in Austria,
Spain, Italy, the United Kingdom, the Netherlands, Denmark,
Switzerland, and France). Since the Ninth Circuit's decision,
Louisiana, Rhode Island, and Iowa have enacted statutory
assisted-suicide bans. La. Rev. Stat. Ann. § 14:32.12 (West Supp.
1997); R. 1. Gen. Laws §§ 11-60-1,11-60-3 (Supp. 1996); Iowa Code
Ann. §§ 707 A.2, 707 A.3 (Supp. 1997). For a detailed history of
the States' statutes, see Marzen, O'Dowd, Crone, & Balch,
Suicide: A Constitutional Right?, 24 Duquesne L. Rev. 1, 148-242
(1985) (App.) (hereinafter Marzen).
711
ity of States in this country have laws imposing criminal
penalties on one who assists another to commit suicide"); see
Stanford v.
Kentucky, 492 U. S. 361, 373 (1989)
("[T]he primary and most reliable indication of [a national]
consensus is ... the pattern of enacted laws"). Indeed, opposition
to and condemnation of suicide-and, therefore, of assisting
suicide-are consistent and enduring themes of our philosophical,
legal, and cultural heritages. See generally Marzen 17-56; New York
State Task Force on Life and the Law, When Death is Sought:
Assisted Suicide and Euthanasia in the Medical Context 77-82 (May
1994) (hereinafter New York Task Force).
More specifically, for over 700 years, the Anglo-American
common-law tradition has punished or otherwise disapproved of both
suicide and assisting suicide.9
Cruzan, 497 U. S., at
294-295 (SCALIA, J., concurring). In the 13th century, Henry de
Bracton, one of the first legal-treatise writers, observed that
"[j]ust as a man may commit felony by slaying another so may he do
so by slaying himself." 2 Bracton on Laws and Customs of England
423 (f. 150) (G. Woodbine ed., S. Thorne transl., 1968). The real
and personal property of one who killed himself to avoid conviction
and punishment for a crime were forfeit to the King; however,
thought Bracton, "if a man slays himself in weariness of life or
because he is unwilling to endure further bodily pain ... [only]
his movable goods [were] confiscated."
Id., at 423-424 (f.
150). Thus, "[t]he principle that suicide of a sane person, for
whatever reason, was a punishable felony was ... introduced
into
9The common law is thought to have emerged through the expansion
of pre-Norman institutions sometime in the 12th century. J. Baker,
An Introduction to English Legal History 11 (2d ed. 1979). England
adopted the ecclesiastical prohibition on suicide five centuries
earlier, in the year 673 at the Council of Hereford, and this
prohibition was reaffirmed by King Edgar in 967. See G. Williams,
The Sanctity of Life and the Criminal Law 257 (1957).
712
English common law." 10 Centuries later, Sir William Blackstone,
whose Commentaries on the Laws of England not only provided a
definitive summary of the common law but was also a primary legal
authority for 18th- and 19th-century American lawyers, referred to
suicide as "self-murder" and "the pretended heroism, but real
cowardice, of the Stoic philosophers, who destroyed themselves to
avoid those ills which they had not the fortitude to endure .... "
4 W. Blackstone, Commentaries *189. Blackstone emphasized that "the
law has ... ranked [suicide] among the highest crimes," ibid.,
although, anticipating later developments, he conceded that the
harsh and shameful punishments imposed for suicide "borde[r] a
little upon severity."
Id., at *190.
For the most part, the early American Colonies adopted the
common-law approach. For example, the legislators of the Providence
Plantations, which would later become Rhode Island, declared, in
1647, that "[s]elf-murder is by all agreed to be the most
unnatural, and it is by this present Assembly declared, to be that,
wherein he that doth it, kills himself out
10 Marzen 59. Other late-medieval treatise writers followed and
restated Bracton; one observed that "man-slaughter" may be "[o]f
[one]self; as in case, when people hang themselves or hurt
themselves, or otherwise kill themselves of their own felony" or
"[o]f others; as by beating, famine, or other punishment; in like
cases, all are man-slayers." A. Horne, The Mirrour of Justices, ch.
1, § 9, pp. 41-42 (w. Robinson ed. 1903). By the mid-16th century,
the Court at Common Bench could observe that "[suicide] is an
Offence against Nature, against God, and against the King .... [T]o
destroy one's self is contrary to Nature, and a Thing most
horrible."
Hales v.
Petit, 1 Plowd. Com. 253,261,75
Eng. Rep. 387, 400 (1561-1562).
In 1644, Sir Edward Coke published his Third Institute, a
lodestar for later common lawyers. See T. Plucknett, A Concise
History of the Common Law 281-284 (5th ed. 1956). Coke regarded
suicide as a category of murder, and agreed with Bracton that the
goods and chattels-but not, for Coke, the lands-of a sane suicide
were forfeit. 3 E. Coke, Institutes *54. William Hawkins, in his
1716 Treatise of the Pleas of the Crown, followed Coke, observing
that "our laws have always had ... an abhorrence of this crime." 1
W. Hawkins, Pleas of the Crown, ch. 27, §4, p. 164 (T. Leach ed.
1795).
713
of a premeditated hatred against his own life or other humor:
... his goods and chattels are the king's custom, but not his debts
nor lands; but in case he be an infant, a lunatic, mad or
distracted man, he forfeits nothing." The Earliest Acts and Laws of
the Colony of Rhode Island and Providence Plantations 1647-1719, p.
19 (J. Cushing ed. 1977). Virginia also required ignominious burial
for suicides, and their estates were forfeit to the Crown. A.
Scott, Criminal Law in Colonial Virginia 108, and n. 93, 198, and
n. 15 (1930).
Over time, however, the American Colonies abolished these harsh
common-law penalties. William Penn abandoned the
criminal-forfeiture sanction in Pennsylvania in 1701, and the other
Colonies (and later, the other States) eventually followed this
example.
Cruzan, supra, at 294 (SCALIA, J., concurring).
Zephaniah Swift, who would later become Chief Justice of
Connecticut, wrote in 1796:
"There can be no act more contemptible, than to attempt to
punish an offender for a crime, by exercising a mean act of revenge
upon lifeless clay, that is insensible of the punishment. There can
be no greater cruelty, than the inflicting [of] a punishment, as
the forfeiture of goods, which must fall solely on the innocent
offspring of the offender .... [Suicide] is so abhorrent to the
feelings of mankind, and that strong love of life which is
implanted in the human heart, that it cannot be so frequently
committed, as to become dangerous to society. There can of course
be no necessity of any punishment." 2 Z. Swift, A System of the
Laws of the State of Connecticut 304 (1796).
This statement makes it clear, however, that the movement away
from the common law's harsh sanctions did not represent an
acceptance of suicide; rather, as Chief Justice Swift observed,
this change reflected the growing consensus that it was unfair to
punish the suicide's family for his wrongdoing.
Cruzan,
supra, at 294 (SCALIA, J., concurring). Nonethe-
714
less, although States moved away from Blackstone's treatment of
suicide, courts continued to condemn it as a grave public wrong.
See,
e. g., Bigelow v.
Berkshire Life Ins. Co.,
93 U. S. 284, 286
(1876) (suicide is "an act of criminal selfdestruction");
Von
Holden v.
Chapman, 87 App. Div. 2d 66, 70-71, 450 N. Y.
S. 2d 623, 626-627 (1982);
Blackwood v.
Jones, 111
Fla. 528, 532, 149 So. 600, 601 (1933) ("No sophistry is tolerated
... which seek[s] to justify self-destruction as commendable or
even a matter of personal right").
That suicide remained a grievous, though nonfelonious, wrong is
confirmed by the fact that colonial and early state legislatures
and courts did not retreat from prohibiting assisting suicide.
Swift, in his early 19th-century treatise on the laws of
Connecticut, stated that "[i]f one counsels another to commit
suicide, and the other by reason of the advice kills himself, the
advisor is guilty of murder as principal." 2 Z. Swift, A Digest of
the Laws of the State of Connecticut 270 (1823). This was the
well-established common-law view, see
In re Joseph G., 34
Cal. 3d 429, 434-435, 667 P. 2d 1176, 1179
(1983);
Commonwealth v.
Mink, 123 Mass. 422, 428 (1877) (" 'Now
if the murder of one's self is felony, the accessory is equally
guilty as if he had aided and abetted in the murder' ") (quoting
Chief Justice Parker's charge to the jury in
Commonwealth v.
Bowen, 13 Mass. 356 (1816)), as was the similar principle
that the consent of a homicide victim is "wholly immaterial to the
guilt of the person who cause[d] [his death]," 3 J. Stephen, A
History of the Criminal Law of England 16 (1883); see 1 F. Wharton,
Criminal Law §§ 451-452 (9th ed. 1885);
Martin v.
Commonwealth, 184 Va. 1009, 10181019, 37 S. E. 2d 43, 47
(1946) ('''The right to life and to personal security is not only
sacred in the estimation of the common law, but it is inalienable'
"). And the prohibitions against assisting suicide never contained
exceptions for those who were near death. Rather, "[t]he life of
those to whom life ha[d] become a burden-of those who [were]
hopelessly diseased or fatally wounded-nay, even the lives of
criminals
715
condemned to death, [were] under the protection of the law,
equally as the lives of those who [were] in the full tide oflife's
enjoyment, and anxious to continue to live."
Blackburn v.
State, 23 Ohio St. 146, 163 (1872); see
Bowen, supra,
at 360 (prisoner who persuaded another to commit suicide could be
tried for murder, even though victim was scheduled shortly to be
executed).
The earliest American statute explicitly to outlaw assisting
suicide was enacted in New York in 1828, Act of Dec. 10, 1828, ch.
20, § 4, 1828 N. Y. Laws 19 (codified at 2 N. Y. Rev. Stat. pt. 4,
ch. 1, Tit. 2, Art. 1, § 7, p. 661 (1829)), and many of the new
States and Territories followed New York's example. Marzen 73-74.
Between 1857 and 1865, a New York commission led by Dudley Field
drafted a criminal code that prohibited "aiding" a suicide and,
specifically, "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."
Id., at 76-77. By
the time the Fourteenth Amendment was ratified, it was a crime in
most States to assist a suicide. See
Cruzan, 497 U. S., at
294-295 (SCALIA, J., concurring). The Field Penal Code was adopted
in the Dakota Territory in 1877 and in New York in 1881, and its
language served as a model for several other western States'
statutes in the late 19th and early 20th centuries. Marzen 76-77,
205-206, 212-213. California, for example, codified its
assisted-suicide prohibition in 1874, using language similar to the
Field Code's.l1 In this century, the Model Penal Code also
prohibited "aiding" suicide, prompting many States to enact or
revise their assisted-suicide
11 In 1850, the California Legislature adopted the English
common law, under which assisting suicide was, of course, a crime.
Act of Apr. 13, 1850, ch. 95, 1850 Cal. Stats. 219. The provision
adopted in 1874 provided that "[e]very person who deliberately aids
or advises, or encourages another to commit suicide, is guilty of a
felony." Act of Mar. 30, 1874, ch. 614, § 13,400 (codified at Cal.
Penal Code § 400 (T. Hittel ed. 1876)).
716
bans.12 The code's drafters observed that "the interests in the
sanctity of life that are represented by the 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."
American Law Institute, Model Penal Code § 210.5, Comment 5, p. 100
(Official Draft and Revised Comments 1980).
Though deeply rooted, the States' assisted-suicide bans have in
recent years been reexamined and, generally, reaffirmed. Because of
advances in medicine and technology, Americans today are
increasingly likely to die in institutions, from chronic illnesses.
President's Comm'n for the Study of Ethical Problems in Medicine
and Biomedical and Behavioral Research, Deciding to Forego
Life-Sustaining Treatment 16-18 (1983). 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 decisionmaking,
and the withdrawal or refusal of life-sustaining medical treatment.
See
Vacco v.
Quill, post, at 804-806; 79 F. 3d, at
818-820; People v.
Kevorkian, 447 Mich. 436, 478-480,
and nn. 53-56, 527 N. W. 2d 714, 731-732, and nn. 53-56 (1994). At
the same time, however, voters and legislators continue for the
most part to reaffirm their States' prohibitions on assisting
suicide.
The Washington statute at issue in this case, Wash. Rev.
Code § 9A.36.060 (1994), was enacted in 1975 as part of a
revision of that State's criminal code. Four years later,
12 "A person who purposely aids or solicits another to commit
suicide is guilty of a felony in the second degree if his conduct
causes such suicide or an attempted suicide, and otherwise of a
misdemeanor." American Law Institute, Model Penal Code § 210.5(2)
(Official Draft and Revised Comments 1980).
717
Washington passed its Natural Death Act, which specifically
stated that the "withholding or withdrawal of life-sustaining
treatment ... shall not, for any purpose, constitute a suicide" and
that "[n]othing in this chapter shall be construed to condone,
authorize, or approve mercy killing .... " Natural Death Act, 1979
Wash. Laws, ch. 112, § 8(1), p. 11 (codified at Wash. Rev. Code §§
70.122.070(1), 70.122.100 (1994)). In 1991, Washington voters
rejected a ballot initiative which, had it passed, would have
permitted a form of physicianassisted suicide.13 Washington then
added a provision to the Natural Death Act expressly excluding
physician-assisted suicide. 1992 Wash. Laws, ch. 98, § 10; Wash.
Rev. Code § 70.122.100 (1994).
California voters rejected an assisted-suicide initiative
similar to Washington's in 1993. On the other hand, in 1994, voters
in Oregon enacted, also through ballot initiative, that State's
"Death With Dignity Act," which legalized physician-assisted
suicide for competent, terminally ill adults.14 Since the Oregon
vote, many proposals to legalize assisted-suicide have been and
continue to be introduced in the States' legislatures, but none has
been enacted.15 And
13 Initiative 119 would have amended Washington's Natural Death
Act, Wash. Rev. Code § 70.122.010
et seq. (1994), to permit
"aid-in-dying," defined as "aid in the form of a medical service
provided in person by a physician that will end the life of a
conscious and mentally competent qualified patient in a dignified,
painless and humane manner, when requested voluntarily by the
patient through a written directive in accordance with this chapter
at the time the medical service is to be provided." App. H to Pet.
for Cert. 3-4.
14 Ore. Rev. Stat. § 127.800
et seq. (1996);
Lee
v.
Oregon, 891 F. Supp. 1429 (Ore. 1995) (Oregon Act does
not provide sufficient safeguards for terminally ill persons and
therefore violates the Equal Protection Clause), vacated,
Lee v.
Oregon, 107 F.3d
1382 (CA9 1997).
15 See,
e. g., Alaska H. B. 371 (1996); Ariz. S. B. 1007
(1996); Cal. A. B. 1080, A. B. 1310 (1995); Colo. H. B. 1185
(1996); Colo. H. B. 1308 (1995); Conn. H. B. 6298 (1995); Ill. H.
B. 691, S. B. 948 (1997); Me. H. P. 663 (1997); Me. H. P. 552
(1995); Md. H. B. 474 (1996); Md. H. B. 933 (1995); Mass. H. B.
3173 (1995); Mich. H. B. 6205, S. B. 556 (1996); Mich. H. B.
4134
718
just last year, Iowa and Rhode Island joined the overwhelming
majority of States explicitly prohibiting assisted suicide. See
Iowa Code Ann. §§ 707 A.2, 707 A.3 (Supp. 1997); R. I. Gen. Laws §§
11-60-1, 11-60-3 (Supp. 1996). Also, on April 30, 1997, President
Clinton signed the Federal Assisted Suicide Funding Restriction Act
of 1997, which prohibits the use of federal funds in support of
physician-assisted suicide. Pub. L. 105-12, 111 Stat. 23 (codified
at 42 U. S. C. § 14401 et seq.).16
(1995); Miss. H. B. 1023 (1996); N. H. H. B. 339 (1995); N. M.
S. B. 446 (1995); N. Y. S. B. 5024, A. B. 6333 (1995); Neb. L. B.
406 (1997); Neb. L. B. 1259 (1996); R. 1. S. 2985 (1996); Vt. H. B.
109 (1997); Vt. H. B. 335 (1995); Wash. S. B. 5596 (1995); Wis. A.
B. 174, S. B. 90 (1995); Senate of Canada, Of Life and Death,
Report of the Special Senate Committee on Euthanasia and Assisted
Suicide A-156 (June 1995) (describing unsuccessful proposals,
between 1991-1994, to legalize assisted suicide).
16 Other countries are embroiled in similar debates: The Supreme
Court of Canada recently rejected a claim that the Canadian Charter
of Rights and Freedoms establishes a fundamental right to assisted
suicide,
Rodriguez v.
British Columbia (Attorney
General), 107 D. L. R. (4th) 342 (1993); the British House of
Lords Select Committee on Medical Ethics refused to recommend any
change in Great Britain's assisted-suicide prohibition, House of
Lords, Session 1993-94 Report of the Select Committee on Medical
Ethics, 12 Issues in Law & Med. 193, 202 (1996) ("We identify
no circumstances in which assisted suicide should be permitted");
New Zealand's Parliament rejected a proposed "Death With Dignity
Bill" that would have legalized physician-assisted suicide in
August 1995, Graeme, MPs Throw out Euthanasia Bill, The Dominion
(Wellington), Aug. 17, 1995, p. 1; and the Northern Territory of
Australia legalized assisted suicide and voluntary euthanasia in
1995, see Shenon, Australian Doctors Get Right to Assist Suicide,
N. Y. Times, July 28, 1995, p. A8. As of February 1997, three
persons had ended their lives with physician assistance in the
Northern Territory. Mydans, Assisted Suicide: Australia Faces a
Grim Reality, N. Y. Times, Feb. 2,1997, p. A3. On March 24,1997,
however, the Australian Senate voted to overturn the Northern
Territory's law. Thornhill, Australia Repeals Euthanasia Law,
Washington Post, Mar. 25, 1997, p. A14; see Euthanasia Laws Act
1997, No. 17, 1997 (Austl.). On the other hand, on May 20, 1997,
Colombia's Constitutional Court legalized voluntary euthanasia for
terminally ill people.
C-239/97 de Mayo 20, 1997, Corte
719
Thus, the States are currently engaged in serious, thoughtful
examinations of physician-assisted suicide and other similar
issues. For example, New York State's Task Force on Life and the
Law-an ongoing, blue-ribbon commission composed of doctors,
ethicists, lawyers, religious leaders, and interested laymen-was
convened in 1984 and commissioned with "a broad mandate to
recommend public policy on issues raised by medical advances." New
York Task Force vii. Over the past decade, the Task Force has
recommended laws relating to end-of-life decisions, surrogate
pregnancy, and organ donation.
Id., at 118-119. After
studying physician-assisted suicide, however, the Task Force
unanimously concluded that "[l]egalizing assisted suicide and
euthanasia would pose profound risks to many individuals who are
ill and vulnerable .... [T]he potential dangers of this dramatic
change in public policy would outweigh any benefit that might be
achieved."
Id., at 120.
Attitudes toward suicide itself have changed since Bracton, but
our laws have consistently condemned, and continue to prohibit,
assisting suicide. Despite changes in medical technology and
notwithstanding an increased emphasis on the importance of
end-of-life decisionmaking, we have not retreated from this
prohibition. Against this backdrop of history, tradition, and
practice, we now turn to respondents' constitutional claim.
II
The Due Process Clause guarantees more than fair process, and
the "liberty" it protects includes more than the absence of
physical restraint.
Collins v.
Harker Heights, 503 U.
S. 115, 125 (1992) (Due Process Clause "protects individual liberty
against 'certain government actions regardless of the fairness of
the procedures used to implement them''') (quot-
Constitucional, M. P. Carlos Gaviria Diaz; see Colombia's Top
Court Legalizes Euthanasia, Orlando Sentinel, May 22, 1997, p.
A1S.
720
ing
Daniels v.
Williams, 474 U. S. 327, 331
(1986)). The Clause also provides heightened protection against
government interference with certain fundamental rights and liberty
interests.
Reno v.
Flores, 507 U. S. 292, 301-302
(1993);
Casey, 505 U. S., at 851. In a long line of cases,
we have held that, in addition to the specific freedoms protected
by the Bill of Rights, the "liberty" specially protected by the Due
Process Clause includes the rights to marry,
Loving v.
Virginia, 388 U.
S. 1 (1967); to have children,
Skinner v.
Oklahoma ex
rel. Williamson, 316 U. S. 535 (1942); to
direct the education and upbringing of one's children,
Meyer
v.
Nebraska, 262 U. S. 390 (1923);
Pierce v.
Society of Sisters, 268 U. S. 510 (1925);
to marital privacy,
Griswold v.
Connecticut, 381 U. S. 479 (1965); to
use contraception,
ibid.; Eisenstadt v.
Baird,
405 U. S. 438
(1972); to bodily integrity,
Rochin v.
California,
342 U. S. 165
(1952), and to abortion,
Casey, supra. We have also assumed,
and strongly suggested, that the Due Process Clause protects the
traditional right to refuse unwanted lifesaving medical treatment.
Cruzan, 497 U. S., at 278-279.
But we "ha[ve] always been reluctant to expand the concept of
substantive due process because guideposts for responsible
decisionmaking in this unchartered area are scarce and open-ended."
Collins, 503 U. S., at 125. By extending constitutional
protection to an asserted right or liberty interest, we, to a great
extent, place the matter outside the arena of public debate and
legislative action. We must therefore "exercise the utmost care
whenever we are asked to break new ground in this field,"
ibid., lest the liberty protected by the Due Process Clause
be subtly transformed into the policy preferences of the Members of
this Court,
Moore, 431 U. S., at 502 (plurality
opinion).
Our established method of substantive-due-process analysis has
two primary features: First, we have regularly observed that the
Due Process Clause specially protects those fundamental rights and
liberties which are, objectively,
721
"deeply rooted in this Nation's history and tradition," id., at
503 (plurality opinion);
Snyder v.
Massachusetts,
291 U. S. 97, 105
(1934) ("so rooted in the traditions and conscience of our people
as to be ranked as fundamental"), and "implicit in the concept of
ordered liberty," such that "neither liberty nor justice would
exist if they were sacrificed,"
Palko v.
Connecticut,
302 U. S. 319,
325, 326 (1937). Second, we have required in
substantive-due-process cases a "careful description" of the
asserted fundamental liberty interest.
Flores, supra, at
302;
Collins, supra, at 125;
Cruzan, supra, at
277278. Our Nation's history, legal traditions, and practices thus
provide the crucial "guideposts for responsible decisionmaking,"
Collins, supra, at 125, that direct and restrain our
exposition of the Due Process Clause. As we stated recently in
Flores, the Fourteenth Amendment "forbids the government to
infringe ... 'fundamental' liberty interests at
all, no
matter what process is provided, unless the infringement is
narrowly tailored to serve a compelling state interest." 507 U. S.,
at 302.
JUSTICE SOUTER, relying on Justice Harlan's dissenting opinion
in
Poe v.
Ullman, 367 U. S. 497 (1961),
would largely abandon this restrained methodology, and instead ask
"whether [Washington's] statute sets up one of those 'arbitrary
impositions' or 'purposeless restraints' at odds with the Due
Process Clause of the Fourteenth Amendment,"
post, at 752
(quoting
Poe, supra, at 543 (Harlan, J., dissenting))P
17 In JUSTICE SOUTER'S opinion, Justice Harlan's
Poe
dissent supplies the "modern justification" for
substantive-due-process review.
Post, at 756, and n. 4
(opinion concurring in judgment). But although Justice Harlan's
opinion has often been cited in due process cases, we have never
abandoned our fundamental-rights-based analytical method. Just four
Terms ago, six of the Justices now sitting joined the Court's
opinion in
Reno v.
Flores, 507 U. S. 292, 301-305
(1993);
Poe was not even cited. And in
Cruzan v.
Director, Mo. Dept. of Health, 497 U. S. 261 (1990),
neither the Court's nor the concurring opinions relied on
Poe; rather, we concluded that the right to refuse unwanted
medical treatment was so rooted in our history, tradition, and
practice as to require special protection under the
722
In our view, however, the development of this Court's
substantive-due-process jurisprudence, described briefly supra, at
719-720, has been a process whereby the outlines of the "liberty"
specially protected by the Fourteenth Amendment-never fully
clarified, to be sure, and perhaps not capable of being fully
clarified-have at least been carefully refined by concrete examples
involving fundamental rights found to be deeply rooted in our legal
tradition. This approach tends to rein in the subjective elements
that are necessarily present in due process judicial review. In
addition, by establishing a threshold requirement-that a challenged
state action implicate a fundamental right-before requiring more
than a reasonable relation to a legitimate state interest to
justify the action, it avoids the need for complex balancing of
competing interests in every case.
Turning to the claim at issue here, the Court of Appeals stated
that "[p]roperly analyzed, the first issue to be resolved is
whether there is a liberty interest in determining the time and
manner of one's death," 79 F. 3d, at 801, or, in other words, "[i]s
there a right to die?," id., at 799. Similarly, respondents assert
a "liberty to choose how to die" and a right to "control of one's
final days," Brief for Respondents 7, and describe the asserted
liberty as "the right to choose a humane, dignified death," id., at
15, and "the liberty to shape death," id., at 18. As noted above,
we have a tradition of carefully formulating the interest at stake
in substantivedue-process cases. For example, although Cruzan is
often described as a "right to die" case, see 79 F. 3d, at 799;
post, at 745 (STEVENS, J., concurring in judgments) (Cruzan
recognized "the more specific interest in making decisions
about
Fourteenth Amendment.
Cruzan, 497 U. S., at 278-279;
id., at 287-288 (O'CONNOR, J., concurring). True, the Court
relied on Justice Harlan's dissent in
Casey, 505 U. S., at
848-850, but, as
Flores demonstrates, we did not in so doing
jettison our established approach. Indeed, to read such a radical
move into the Court's opinion in
Casey would seem to fly in
the face of that opinion's emphasis on
stare decisis. 505 U.
S., at 854-869.
723
how to confront an imminent death"), we were, in fact, more
precise: We assumed that the Constitution granted competent persons
a "constitutionally protected right to refuse lifesaving hydration
and nutrition."
Cruzan, 497 U. S., at 279; id., at 287
(O'CONNOR, J., concurring) ("[A] liberty interest in refusing
unwanted medical treatment may be inferred from our prior
decisions"). The Washington statute at issue in this case prohibits
"aid[ing] another person to attempt suicide," Wash. Rev. Code §
9A.36.060(1) (1994), and, thus, the question before us is whether
the "liberty" specially protected by the Due Process Clause
includes a right to commit suicide which itself includes a right to
assistance in doing SO.18
We now inquire whether this asserted right has any place in our
Nation's traditions. Here, as discussed
supra, at 710719, we
are confronted with a consistent and almost universal tradition
that has long rejected the asserted right, and continues explicitly
to reject it today, even for terminally ill, mentally competent
adults. To hold for respondents, we would have to reverse centuries
of legal doctrine and practice, and strike down the considered
policy choice of almost every State. See
Jackman v.
Rosenbaum Co., 260 U. S. 22, 31 (1922)
("If a thing has been practised for two hundred years by common
consent, it will need a strong case for the Fourteenth Amendment to
affect it");
Flores, 507 U. S., at 303 ("The mere novelty of
such a claim is reason enough to doubt that 'substantive due
process' sustains it").
Respondents contend, however, that the liberty interest they
assert
is consistent with this Court's substantive-due-
18 See,
e. g., Quill v.
Vacco, 80 F.3d
716, 724
(CA2 1996) ("right to assisted suicide finds no
cognizable basis in the Constitution's language or design");
Compassion in Dying v.
Washington, 49 F.3d
586, 591
(CA9 1995) (referring to alleged "right to
suicide," "right to assistance in suicide," and "right to aid in
killing oneself");
People v.
Kevorkian, 447 Mich.
436,476, n. 47, 527 N. W. 2d 714, 730, n. 47 (1994) ("[T]he
question that we must decide is whether the [C]onstitution
encompasses a right to commit suicide and, if so, whether it
includes a right to assistance").
724
process line of cases, if not with this Nation's history and
practice. Pointing to
Casey and
Cruzan, respondents
read our jurisprudence in this area as reflecting a general
tradition of "self-sovereignty," Brief for Respondents 12, and as
teaching that the "liberty" protected by the Due Process Clause
includes "basic and intimate exercises of personal autonomy,"
id., at 10; see
Casey, 505 U. S., at 847 ("It is a
promise of the Constitution that there is a realm of personal
liberty which the government may not enter"). According to
respondents, our liberty jurisprudence, and the broad,
individualistic principles it reflects, protects the "liberty of
competent, terminally ill adults to make end-of-life decisions free
of undue government interference." Brief for Respondents 10. The
question presented in this case, however, is whether the
protections of the Due Process Clause include a right to commit
suicide with another's assistance. With this "careful description"
of respondents' claim in mind, we turn to
Casey and
Cruzan.
In
Cruzan, we considered whether Nancy Beth Cruzan, who
had been severely injured in an automobile accident and was in a
persistive vegetative state, "ha[d] a right under the United States
Constitution which would require the hospital to withdraw
life-sustaining treatment" at her parents' request. 497 U. S., at
269. We began with the observation that "[a]t common law, even the
touching of one person by another without consent and without legal
justification was a battery."
Ibid. We then discussed the
related rule that "informed consent is generally required for
medical treatment."
Ibid. After reviewing a long line of
relevant state cases, we concluded that "the common-law doctrine of
informed consent is viewed as generally encompassing the right of a
competent individual to refuse medical treatment."
Id., at
277. Next, we reviewed our own cases on the subject, and stated
that "[t]he principle that a competent person has a
constitutionally protected liberty interest in refusing unwanted
medical treatment may be inferred from our prior
725
decisions."
Id., at 278. Therefore, "for purposes of
[that] case, we assume[d] that the United States Constitution would
grant a competent person a constitutionally protected right to
refuse lifesaving hydration and nutrition."
Id., at 279; see
id., at 287 (O'CONNOR, J., concurring). We concluded that,
notwithstanding this right, the Constitution permitted Missouri to
require clear and convincing evidence of an incompetent patient's
wishes concerning the withdrawal of life-sustaining treatment.
Id., at 280-281.
Respondents contend that in
Cruzan we "acknowledged that
competent, dying persons have the right to direct the removal of
life-sustaining medical treatment and thus hasten death," Brief for
Respondents 23, and that "the constitutional principle behind
recognizing the patient's liberty to direct the withdrawal of
artificial life support applies at least as strongly to the choice
to hasten impending death by consuming lethal medication," id., at
26. Similarly, the Court of Appeals concluded that
"Cruzan,
by recognizing a liberty interest that includes the refusal of
artificial provision of life-sustaining food and water, necessarily
recognize[d] a liberty interest in hastening one's own death." 79
F. 3d, at 816.
The right assumed in
Cruzan, however, was not simply
deduced from abstract concepts of personal autonomy. Given the
common-law rule that forced medication was a battery, and the long
legal tradition protecting the decision to refuse unwanted medical
treatment, our assumption was entirely consistent with this
Nation's history and constitutional traditions. The decision to
commit suicide with the assistance of another may be just as
personal 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. See
Quill v.
Vacco, post, at 800-808. In
Cruzan itself, we recognized that most States outlawed
assisted suicide-and even more do today-and we certainly gave no
intimation that the right to refuse unwanted medical treatment
could be some-
726
how transmuted into a right to assistance in committing suicide.
497 U. S., at 280.
Respondents also rely on
Casey. There, the Court's
opinion concluded that "the essential holding of
Roe v.
Wade[, 410 U.
S. 113 (1973),] should be retained and once again reaffirmed."
505 U. S., at 846. We held, first, that a woman has a right, before
her fetus is viable, to an abortion "without undue interference
from the State"; second, that States may restrict postviability
abortions, so long as exceptions are made to protect a woman's life
and health; and third, that the State has legitimate interests
throughout a pregnancy in protecting the health of the woman and
the life of the unborn child.
Ibid. In reaching this
conclusion, the opinion discussed in some detail this Court's
substantive-due-process tradition of interpreting the Due Process
Clause to protect certain fundamental rights and "personal
decisions relating to marriage, procreation, contraception, family
relationships, child rearing, and education," and noted that many
of those rights and liberties "involv[e] the most intimate and
personal choices a person may make in a lifetime."
Id., at
851.
The Court of Appeals, like the District Court, found
Casey "'highly instructive'" and" 'almost prescriptive'" for
determining "'what liberty interest may inhere in a terminally ill
person's choice to commit suicide''':
"Like the decision of whether or not to have an abortion, the
decision how and when to die is one of 'the most intimate and
personal choices a person may make in a lifetime,' a choice
'central to personal dignity and autonomy.'" 79 F. 3d, at
813-814.
Similarly, respondents emphasize the statement in
Casey
that:
"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
727
formed under compulsion of the State." 505 U. S., at 851.
Brief for Respondents 12. By choosing this language, the Court's
opinion in
Casey described, in a general way and in light of
our prior cases, those personal activities and decisions that this
Court has identified as so deeply rooted in our history and
traditions, or so fundamental to our concept of constitutionally
ordered liberty, that they are protected by the Fourteenth
Amendment.19 The opinion moved from the recognition that liberty
necessarily includes freedom of conscience and belief about
ultimate considerations to the observation that "though the
abortion decision may originate within the zone of conscience and
belief, it is
more than a philosophic exercise." Casey, 505
U. S., at 852 (emphasis added). That many of the rights and
liberties protected by the Due Process Clause sound in personal
autonomy does not warrant the sweeping conclusion that any and all
important, intimate, and personal decisions are so protected,
San An-
19 See
Moore v.
East Cleveland, 431 U. S. 494, 503 (1977)
("[T]he Constitution protects the sanctity of the family
precisely because the institution of the family is deeply
rooted in this Nation's history and tradition" (emphasis added));
Griswold v.
Connecticut, 381 U. S. 479, 485-486
(1965) (intrusions into the "sacred precincts of marital bedrooms"
offend rights "older than the Bill of Rights"); id., at 495-496
(Goldberg, J., concurring) (the law in question "disrupt[ed] the
traditional relation of the family-a relation as old and as
fundamental as our entire civilization");
Loving v.
Virginia, 388 U.
S. 1, 12 (1967) ("The freedom to marry has long been recognized
as one of the vital personal rights essential to the orderly
pursuit of happiness");
Turner v.
Safley, 482 U. S. 78, 95 (1987)
("[T]he decision to marry is a fundamental right");
Roe v.
Wade, 410 U.
S. 113, 140 (1973) (stating that at the founding and throughout
the 19th century, "a woman enjoyed a substantially broader right to
terminate a pregnancy");
Skinner v.
Oklahoma ex rel.
Williamson, 316
U. S. 535, 541 (1942) ("Marriage and procreation are
fundamental");
Pierce v.
Society of Sisters, 268 U. S. 510, 535
(1925);
Meyer v.
Nebraska, 262 U. S. 390, 399 (1923)
(liberty includes "those privileges long recognized at common law
as essential to the orderly pursuit of happiness by free men").
728
tonio Independent School Dist. v.
Rodriguez,
411 U. S. 1, 33-35
(1973), and
Casey did not suggest otherwise.
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 asserted "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 assistedsuicide ban be rationally related to
legitimate government interests. See
Heller v.
Doe,
509 U. S. 312,
319-320 (1993);
Flores, 507 U. S., at 305. This requirement
is unquestionably met here. As the court below recognized, 79 F.
3d, at 816-817,20 Washington's assisted-suicide ban implicates a
number of state interestsP See 49 F. 3d, at 592-593; Brief for
State of California et al. as
Amici Curiae 26-29; Brief for
United States as
Amicus Curiae 16-27.
First, Washington has an "unqualified interest in the
preservation of human life."
Cruzan, 497 U. S., at 282. The
State's prohibition on assisted suicide, like all homicide laws,
both reflects and advances its commitment to this interest. See
id., at 280; Model Penal Code § 210.5, Comment 5, at 100 ("[T]he
interests in the sanctity of life that are represented by the
criminal homicide laws are threatened by one who expresses a
willingness to participate in taking the life of
20 The court identified and discussed six state interests: (1)
preserving life; (2) preventing suicide; (3) avoiding the
involvement of third parties and use of arbitrary, unfair, or undue
influence; (4) protecting family members and loved ones; (5)
protecting the integrity of the medical profession; and (6)
avoiding future movement toward euthanasia and other abuses. 79 F.
3d, at 816-832.
21 Respondents also admit the existence of these interests,
Brief for Respondents 28-39, but contend that Washington could
better promote and protect them through regulation, rather than
prohibition, of physicianassisted suicide. Our inquiry, however, is
limited to the question whether the State's prohibition is
rationally related to legitimate state interests.
729
another").22 This interest is symbolic and aspirational as well
as practical:
"While suicide is no longer prohibited or penalized, the ban
against assisted suicide and euthanasia shores up the notion of
limits in human relationships. It reflects the gravity with which
we view the decision to take one's own life or the life of another,
and our reluctance to encourage or promote these decisions." New
York Task Force 131-132.
Respondents admit that "[t]he State has a real interest in
preserving the lives of those who can still contribute to society
and have the potential to enjoy life." Brief for Respondents 35, n.
23. The Court of Appeals also recognized Washington's interest in
protecting life, but held that the "weight" of this interest
depends on the "medical condition and the wishes of the person
whose life is at stake." 79 F. 3d, at 817. Washington, however, has
rejected this sliding-scale approach and, through its
assisted-suicide ban, insists that all persons' lives, from
beginning to end, regardless of physicalor mental condition, are
under the full protection of the law. See
United States v.
Rutherford, 442 U. S. 544, 558 (1979)
(" ... Congress could reasonably have determined to protect the
terminally ill, no less than other patients, from the vast range of
self-styled panaceas that inventive minds can devise"). As we have
previously affirmed, the States "may properly decline to make
judgments about the 'quality' of life that a particular individual
may enjoy,"
Cruzan,
22 The States express this commitment by other means as well:
"[N]early all states expressly disapprove of suicide and assisted
suicide either in statutes dealing with durable powers of attorney
in health-care situations, or in 'living will' statutes. In
addition, all states provide for the involuntary commitment of
persons who may harm themselves as the result of mental illness,
and a number of states allow the use of nondeadly force to thwart
suicide attempts."
People v.
Kevorkian, 447 Mich., at
478-479, and nn. 53-56, 527 N. W. 2d, at 731-732, and nn.
53-56.
730
supra, at 282. This remains true, as
Cruzan makes
clear, even for those who are near death.
Relatedly, all admit that suicide is a serious public-health
problem, especially among persons in otherwise vulnerable groups.
See Washington State Dept. of Health, Annual Summary of Vital
Statistics 1991, pp. 29-30 (Oct. 1992) (suicide is a leading cause
of death in Washington of those between the ages of 14 and 54); New
York Task Force 10,23-33 (suicide rate in the general population is
about one percent, and suicide is especially prevalent among the
young and the elderly). The State has an interest in preventing
suicide, and in studying, identifying, and treating its causes. See
79 F. 3d, at 820; id., at 854 (Beezer, J., dissenting) ("The state
recognizes suicide as a manifestation of medical and psychological
anguish"); Marzen 107-146.
Those who attempt suicide-terminally ill or not-often suffer
from depression or other mental disorders. See New York Task Force
13-22, 126-128 (more than 95% of those who commit suicide had a
major psychiatric illness at the time of death; among the
terminally ill, uncontrolled pain is a "risk factor" because it
contributes to depression); PhysicianAssisted Suicide and
Euthanasia in the Netherlands: A Report of Chairman Charles T.
Canady to the Subcommittee on the Constitution of the House
Committee on the Judiciary, 104th Cong., 2d Sess., 10-11 (Comm.
Print 1996); cf. Back, Wallace, Starks, & Pearlman,
Physician-Assisted Suicide and Euthanasia in Washington State, 275
JAMA 919, 924 (1996) ("[l]ntolerable physical symptoms are not the
reason most patients request physician-assisted suicide or
euthanasia"). Research indicates, however, that many people who
request physician-assisted suicide withdraw that request if their
depression and pain are treated. H. Hendin, Seduced by Death:
Doctors, Patients and the Dutch Cure 24-25 (1997) (suicidal,
terminally ill patients "usually respond well to treatment for
depressive illness and pain medication and are then grateful to be
alive"); New York Task Force 177-178.
731
The New York Task Force, however, expressed its concern that,
because depression is difficult to diagnose, physicians and medical
professionals often fail to respond adequately to seriously ill
patients' needs.
Id., at 175. Thus, legal physician-assisted
suicide could make it more difficult for the State to protect
depressed or mentally ill persons, or those who are suffering from
untreated pain, from suicidal impulses.
The State also has an interest in protecting the integrity and
ethics of the medical profession. In contrast to the Court of
Appeals' conclusion that "the integrity of the medical profession
would [not] be threatened in any way by [physician-assisted
suicide]," 79 F. 3d, at 827, the American Medical Association, like
many other medical and physicians' groups, has concluded that
"[p]hysician-assisted suicide is fundamentally incompatible with
the physician's role as healer." American Medical Association, Code
of Ethics § 2.211 (1994); see Council on Ethical and Judicial
Affairs, Decisions Near the End of Life, 267 JAMA 2229,2233 (1992)
("[T]he societal risks of involving physicians in medical
interventions to cause patients' deaths is too great"); New York
Task Force 103-109 (discussing physicians' views). And
physician-assisted suicide could, it is argued, undermine the trust
that is essential to the doctor-patient relationship by blurring
the time-honored line between healing and harming. Assisted Suicide
in the United States, Hearing before the Subcommittee on the
Constitution of the House Committee on the Judiciary, 104th Cong.,
2d Sess., 355-356 (1996) (testimony of Dr. Leon R. Kass) ("The
patient's trust in the doctor's whole-hearted devotion to his best
interests will be hard to sustain").
Next, the State has an interest in protecting vulnerable
groups-including the poor, the elderly, and disabled persons-from
abuse, neglect, and mistakes. The Court of Appeals dismissed the
State's concern that disadvantaged persons might be pressured into
physician-assisted suicide as
732
"ludicrous on its face." 79 F. 3d, at 825. We have recognized,
however, the real risk of subtle coercion and undue influence in
end-of-life situations.
Cruzan, 497 U. S., at 281.
Similarly, the New York Task Force warned that "[l]egalizing
physician-assisted suicide would pose profound risks to many
individuals who are ill and vulnerable .... The risk of harm is
greatest for the many individuals in our society whose autonomy and
well-being are already compromised by poverty, lack of access to
good medical care, advanced age, or membership in a stigmatized
social group." New York Task Force 120; see
Compassion in
Dying, 49 F. 3d, at 593 ("An insidious bias against the
handicapped-again coupled with a cost-saving mentality-makes them
especially in need of Washington's statutory protection"). If
physicianassisted suicide were permitted, many might resort to it
to spare their families the substantial financial burden of
endof-life health-care costs.
The State's interest here goes beyond protecting the vulnerable
from coercion; it extends to protecting disabled and terminally ill
people from prejudice, negative and inaccurate stereotypes, and
"societal indifference." 49 F. 3d, at 592. The State's
assisted-suicide ban reflects and reinforces its policy that the
lives of terminally ill, disabled, and elderly people must be no
less valued than the lives of the young and healthy, and that a
seriously disabled person's suicidal impulses should be interpreted
and treated the same way as anyone else's. See New York Task Force
101-102; Physician-Assisted Suicide and Euthanasia in the
Netherlands: A Report of Chairman Charles T. Canady,
supra,
at 9, 20 (discussing prejudice toward the disabled and the negative
messages euthanasia and assisted suicide send to handicapped
patients).
Finally, the State may fear that permitting assisted suicide
will start it down the path to voluntary and perhaps even
involuntary euthanasia. The Court of Appeals struck down
733
Washington's assisted-suicide ban only "as applied to competent,
terminally ill adults who wish to hasten their deaths by obtaining
medication prescribed by their doctors." 79 F. 3d, at 838.
Washington insists, however, that the impact of the court's
decision will not and cannot be so limited. Brief for Petitioners
44-47. If suicide is protected as a matter of constitutional right,
it is argued, "every man and woman in the United States must enjoy
it."
Compassion in Dying, 49 F. 3d, at 591; see
Kevorkian, 447 Mich., at 470, n. 41, 527 N. W. 2d, at
727-728, n. 41. The Court of Appeals' decision, and its expansive
reasoning, provide ample support for the State's concerns. The
court noted, for example, that the "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; that "in some
instances, the patient may be unable to self-administer the drugs
and ... administration by the physician ... may be the only way the
patient may be able to receive them," id., at 831; and that not
only physicians, but also family members and loved ones, will
inevitably participate in assisting suicide, id., at 838, n. 140.
Thus, it turns out that what is couched as a limited right to
"physician-assisted suicide" is likely, in effect, a much broader
license, which could prove extremely difficult to police and
contain.23 Washington's ban on assisting suicide prevents such
erosion.
23JU8TICE SOUTER concludes that "[t]he case for the slippery
slope is fairly made out here, not because recognizing one due
process right would leave a court with no principled basis to avoid
recognizing another, but because there is a plausible case that the
right claimed would not be readily containable by reference to
facts about the mind that are matters of difficult judgment, or by
gatekeepers who are subject to temptation, noble or not."
Post, at 785 (opinion concurring in judgment). We agree that
the case for a slippery slope has been made out, but-bearing in
mind Justice Cardozo's observation of "[t]he tendency of a
principle to expand itself to the limit of its logic," The Nature
of the Judicial Process 51 (1932)-we also recognize the
reasonableness of the widely expressed
734
This concern is further supported by evidence about 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 (defined as "the deliberate termination of another's
life at his request"), 400 cases of assisted suicide, and more than
1,000 cases of euthanasia without an explicit request. In addition
to these latter 1,000 cases, the study found an additional 4,941
cases where physicians administered lethal morphine overdoses
without the patients' explicit consent. Physician-Assisted Suicide
and Euthanasia in the Netherlands: A Report of Chairman Charles T.
Canady,
supra, 12-13 (citing Dutch study). 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.
Id., at 16-21; see generally C. Gomez, Regulating
Death: Euthanasia and the Case of the Netherlands (1991); H.
Hendin, Seduced By Death: Doctors, Patients, and the Dutch Cure
(1997). The New York Task Force, citing the Dutch experience,
observed that "assisted suicide and euthanasia are closely linked,"
New York Task Force 145, and concluded that the "risk of ... abuse
is neither speculative nor distant," id., at 134. Washington, like
most
skepticism about the lack of a principled basis for confining
the right. See Brief for United States as
Amicus Curiae 26
("Once a legislature abandons a categorical prohibition against
physician assisted suicide, there is no obvious stopping point");
Brief for Not Dead Yet et al. as
Amici Curiae 21-29; Brief
for Bioethics Professors as
Amici Curiae 23-26; Report of
the Council on Ethical and Judicial Affairs, App. 133, 140 ("[I]f
assisted suicide is permitted, then there is a strong argument for
allowing euthanasia"); New York Task Force 132; Kamisar, The "Right
to Die"; On Drawing (and Erasing) Lines, 35 Duquesne L. Rev. 481
(1996); Kamisar, Against Assisted Suicide-Even in a Very Limited
Form, 72 U. Det. Mercy L. Rev. 735 (1995).
735
other States, reasonably ensures against this risk by banning,
rather than regulating, assisted suicide. See
United States
v. 12
200ft. Reels of Super 8MM. Film,
413 U. S. 123, 127 (1973)
("Each step, when taken, appear[s] a reasonable step in relation to
that which preceded it, although the aggregate or end result is one
that would never have been seriously considered in the first
instance").
We need not weigh exactingly the relative strengths of these
various interests. They are unquestionably important and
legitimate, and Washington's ban on assisted suicide is at least
reasonably related to their promotion and protection. We therefore
hold that Wash. Rev. Code § 9A.36.060(1) (1994) does not violate
the Fourteenth Amendment, either on its face or "as applied to
competent, terminally ill adults who wish to hasten their deaths by
obtaining medication prescribed by their doctors." 79 F. 3d, at
838.24
***
Throughout the Nation, Americans are engaged in an earnest and
profound debate about the morality, legality, and practicality of
physician-assisted suicide. Our holding permits this debate to
continue, as it should in a democratic society. The decision of the
en banc Court of Appeals is
24JUSTICE STEVENS states that "the Court does conceive of
respondents' claim as a facial challenge-addressing not the
application of the statute to a particular set of plaintiffs before
it, but the constitutionality of the statute's categorical
prohibition .... "
Post, at 740 (opinion concurring in
judgments). We emphasize that we today reject the Court of Appeals'
specific holding that the statute is unconstitutional "as applied"
to a particular class. See n. 6, supra. JUSTICE STEVENS agrees with
this holding, see
post, at 750, but would not "foreclose the
possibility that an individual plaintiff seeking to hasten her
death, or a doctor whose assistance was sought, could prevail in a
more particularized challenge," ibid. Our opinion does not
absolutely foreclose such a claim. However, given our holding that
the Due Process Clause of the Fourteenth Amendment does not provide
heightened protection to the asserted liberty interest in ending
one's life with a physician's assistance, such a claim would have
to be quite different from the ones advanced by respondents
here.
736
reversed, and the case is remanded for further proceedings
consistent with this opinion.
It is so ordered.
JUSTICE O'CONNOR, concurring.* t
Death will be different for each of us. For many, the last days
will be spent in physical pain and perhaps the despair that
accompanies physical deterioration and a loss of control of basic
bodily and mental functions. Some will seek medication to alleviate
that pain and other symptoms.
The Court frames the issue in
Washington v.
Glucksberg as whether the Due Process Clause of the
Constitution protects a "right to commit suicide which itself
includes a right to assistance in doing so,"
ante, at 723,
and concludes that our Nation's history, legal traditions, and
practices do not support the existence of such a right. I join the
Court's opinions because I agree that there is no generalized right
to "commit suicide." But respondents urge us to address the
narrower question whether a mentally competent person who is
experiencing great suffering has a constitutionally cognizable
interest in controlling the circumstances of his or her imminent
death. I see no need to reach that question in the context of the
facial challenges to the New York and Washington laws at issue
here. See
ibid. ("The Washington statute at issue in this
case prohibits 'aid[ing] another person to attempt suicide,' ...
and, thus, the question before us is whether the 'liberty'
specially protected by the Due Process Clause includes a right to
commit suicide which itself includes a right to assistance in doing
so"). The parties and
amici agree that in these States a
patient who is
*JUSTICE GINSBURG concurs in the Court's judgments substantially
for the reasons stated in this opinion. JUSTICE BREYER joins this
opinion except insofar as it joins the opinions of the Court.
t[This opinion applies also to No. 95-1858,
Vacco et al.
v.
Quill et al., post, p. 793.]
737
suffering from a terminal illness and who is experiencing great
pain has no legal barriers to obtaining medication, from qualified
physicians, to alleviate that suffering, even to the point of
causing unconsciousness and hastening death. See Wash. Rev. Code §
70.122.010 (1994); Brief for Petitioners in No. 95-1858, p. 15, n.
9; Brief for Respondents in No. 95-1858, p. 15. In this light, even
assuming that we would recognize such an interest, I agree that the
State's interests in protecting those who are not truly competent
or facing imminent death, or those whose decisions to hasten death
would not truly be voluntary, are sufficiently weighty to justify a
prohibition against physician-assisted suicide.
Ante, at
731-733;
post, at 747 (STEVENS, J., concurring in
judgments);
post, at 782-787 (SOUTER, J., concurring in
judgment).
Every one of us at some point may be affected by our own or a
family member's terminal illness. There is no reason to think the
democratic process will not strike the proper balance between the
interests of terminally ill, mentally competent individuals who
would seek to end their suffering and the State's interests in
protecting those who might seek to end life mistakenly or under
pressure. As the Court recognizes, States are presently undertaking
extensive and serious evaluation of physician-assisted suicide and
other related issues.
Ante, at 716-718; see
post, at
785-788 (SOUTER, J., concurring in judgment). In such
circumstances, "the ... challenging task of crafting appropriate
procedures for safeguarding ... liberty interests is entrusted to
the 'laboratory' of the States ... in the first instance."
Cruzan v.
Director, Mo. Dept. of Health, 497 U. S. 261, 292 (1990)
(O'CONNOR, J., concurring) (citing
New State Ice Co. v.
Liebmann, 285
U. S. 262, 311 (1932)).
In sum, there is no need to address the question whether
suffering patients have a constitutionally cognizable interest in
obtaining relief from the suffering that they may experience in the
last days of their lives. There is no dispute that
738
STEVENS, J., concurring in judgments
dying patients in Washington and New York can obtain palliative
care, even when doing so would hasten their deaths. The difficulty
in defining terminal illness and the risk that a dying patient's
request for assistance in ending his or her life might not be truly
voluntary justifies the prohibitions on assisted suicide we uphold
here.
JUSTICE STEVENS, concurring in the judgments. *
The Court ends its opinion with the important observation that
our holding today is fully consistent with a continuation of the
vigorous debate about the "morality, legality, and practicality of
physician-assisted suicide" in a democratic society.
Ante,
at 735. I write separately to make it clear that there is also room
for further debate about the limits that the Constitution places on
the power of the States to punish the practice.
I
The morality, legality, and practicality of capital punishment
have been the subject of debate for many years. In 1976, this Court
upheld the constitutionality of the practice in cases coming to us
from Georgia,1 Florida,2 and Texas.3 In those cases we concluded
that a State does have the power to place a lesser value on some
lives than on others; there is no absolute requirement that a State
treat all human life as having an equal right to preservation.
Because the state legislatures had sufficiently narrowed the
category of lives that the State could terminate, and had enacted
special procedures to ensure that the defendant belonged in that
limited category, we concluded that the statutes were not
unconstitutional on their face. In later cases coming to us from
each
*[This opinion applies also to No. 95-1858,
Vacco et al.
v.
Quill et al.,
post, p. 793.]
1
Gregg v.
Georgia, 428 U. S. 153 (1976).
2 Proffitt v.
Florida, 428 U. S. 242 (1976). 3
Jurek v.
Texas, 428 U. S. 262 (1976).
739
of those States, however, we found that some applications of the
statutes were unconstitutiona1.4
Today, the Court decides that Washington's statute prohibiting
assisted suicide is not invalid "on its face," that is to say, in
all or most cases in which it might be applied.5 That holding,
however, does not foreclose the possibility that some applications
of the statute might well be invalid.
As originally filed,
Washington v.
Glucksberg
presented a challenge to the Washington statute on its face and as
it applied to three terminally ill, mentally competent patients and
to four physicians who treat terminally ill patients. After the
District Court issued its opinion holding that the statute placed
an undue burden on the right to commit physicianassisted suicide,
see
Compassion in Dying v.
Washington, 850 F. Supp.
1454, 1462, 1465 (WD Wash. 1994), the three patients died. Although
the Court of Appeals considered the constitutionality of the
statute "as applied to the prescription of life-ending medication
for use by terminally ill, competent adult patients who wish to
hasten their deaths,"
Compassion in Dying v.
Washington, 79 F.3d
790, 798 (CA9 1996), the court did not have before it any
individual plaintiff seeking to hasten her death or any doctor who
was threatened with prosecution for assisting in the suicide of a
particular patient; its analysis and eventual holding that the
statute was unconstitutional was not limited to a particular set of
plaintiffs before it.
The appropriate standard to be applied in cases making facial
challenges to state statutes has been the subject of debate within
this Court. See
Janklow v.
Planned Parenthood, Sioux
Falls Clinic, 517 U. S. 1174 (1996). Upholding the validity of
the federal Bail Reform Act of 1984, the Court stated in
United
States v.
Salerno, 481 U. S. 739 (1987),
that a "facial challenge to a legislative Act is, of course, the
most
4 See,
e. g., Godfrey v.
Georgia, 446 U. S. 420 (1980);
Enmund v.
Florida, 458 U. S. 782 (1982);
Penry v.
Lynaugh, 492 U. S. 302 (1989).
5 See
ante, at 709, n. 6.
740
STEVENS, J., concurring in judgments
difficult challenge to mount successfully, since the challenger
must establish that no set of circumstances exists under which the
Act would be valid."
Id., at 745.6 I do not believe the
Court has ever actually applied such a strict standard,7 even in
Salerno itself, and the Court does not appear to apply
Salerno here. Nevertheless, the Court does conceive of
respondents' claim as a facial challenge-addressing not the
application of the statute to a particular set of plaintiffs before
it, but the constitutionality of the statute's categorical
prohibition against "aid[ing] another person to attempt suicide."
Ante, at 723 (internal quotation marks omitted) (citing
Wash. Rev. Code § 9A.36.060(1) (1994)). Accordingly, the Court
requires the plaintiffs to show that the interest in liberty
protected by the Fourteenth Amendment "includes a right to commit
suicide which itself includes a right to assistance in doing so."
Ante, at 723.
History and tradition provide ample support for refusing to
recognize an open-ended constitutional right to commit suicide.
Much more than the State's paternalistic interest
6 If the Court had actually applied the
Salerno standard
in this action, it would have taken only a few paragraphs to
identify situations in which the Washington statute could be
validly enforced. In
Salerno itself, the Court would have
needed only to look at whether the statute could be
constitutionally applied to the arrestees before it; any further
analysis would have been superfluous. See Dorf, Facial Challenges
to State and Federal Statutes, 46 Stan. L. Rev. 235, 239-240 (1994)
(arguing that if the
Salerno standard were taken literally,
a litigant could not succeed in her facial challenge unless she
also succeeded in her as applied challenge).
7 In other cases and in other contexts, we have imposed a
significantly lesser burden on the challenger. The most lenient
standard that we have applied requires the challenger to establish
that the invalid applications of a statute "must not only be real,
but substantial as well, judged in relation to the statute's
plainly legitimate sweep."
Broadrick v.
Oklahoma, 413
U. S. 601, 615 (1973). As the Court's opinion demonstrates,
Washington's statute prohibiting assisted suicide has a "plainly
legitimate sweep." While that demonstration provides a sufficient
justification for rejecting respondents' facial challenge, it does
not mean that every application of the statute should or will be
upheld.
741
in protecting the individual from the irrevocable consequences
of an ill-advised decision motivated by temporary concerns is at
stake. There is truth in John Donne's observation that "No man is
an island." 8 The State has an interest in preserving and fostering
the benefits that every human being may provide to the community-a
community that thrives on the exchange of ideas, expressions of
affection, shared memories, and humorous incidents, as well as on
the material contributions that its members create and support. The
value to others of a person's life is far too precious to allow the
individual to claim a constitutional entitlement to complete
autonomy in making a decision to end that life. Thus, I fully agree
with the Court that the "liberty" protected by the Due Process
Clause does not include a categorical "right to commit suicide
which itself includes a right to assistance in doing so."
Ibid.
But just as our conclusion that capital punishment is not always
unconstitutional did not preclude later decisions holding that it
is sometimes impermissibly cruel, so is it equally clear that a
decision upholding a general statutory prohibition of assisted
suicide does not mean that every possible application of the
statute would be valid. A State, like Washington, that has
authorized the death penalty, and thereby has concluded that the
sanctity of human life does not require that it always be
preserved, must acknowledge that there are situations in which an
interest in hastening
8 "Who casts not up his eye to the sun when it rises? but who
takes off his eye from a comet when that breaks out? Who bends not
his ear to any bell which upon any occasion rings? but who can
remove it from that bell which is passing a piece of himself out of
this world? No man is an island, entire of itself; every man is a
piece of the continent, a part of the main. If a clod be washed
away by the sea, Europe is the less, as well as if a promontory
were, as well as if a manor of thy friend's or of thine own were;
any man's death diminishes me, because I am involved in mankind;
and therefore never send to know for whom the bell tolls; it tolls
for thee." J. Donne, Meditation No. 17, Devotions Upon Emergent
Occasions (1623)
(http://www.kfu.com/- pl...om_ the
_beIUolls.html).
742
STEVENS, J., concurring in judgments
death is legitimate. Indeed, not only is that interest sometimes
legitimate, I am also convinced that there are times when it is
entitled to constitutional protection.
II
In
Cruzan v.
Director, Mo. Dept. of Health,
497 U. S. 261
(1990), the Court assumed that the interest in liberty protected by
the Fourteenth Amendment encompassed the right of a terminally ill
patient to direct the withdrawal of lifesustaining treatment. As
the Court correctly observes today, that assumption "was not simply
deduced from abstract concepts of personal autonomy."
Ante,
at 725. Instead, it was supported by the common-law tradition
protecting the individual's general right to refuse unwanted
medical treatment.
Ibid. We have recognized, however, that
this common-law right to refuse treatment is neither absolute nor
always sufficiently weighty to overcome valid countervailing state
interests. As Justice Brennan pointed out in his
Cruzan
dissent, we have upheld legislation imposing punishment on persons
refusing to be vaccinated, 497 U. S., at 312, n. 12, citing
Jacobson v.
Massachusetts, 197 U. S. 11, 26-27
(1905), and as JUSTICE SCALIA pointed out in his concurrence, the
State ordinarily has the right to interfere with an attempt to
commit suicide by, for example, forcibly placing a bandage on a
self-inflicted wound to stop the flow of blood. 497 U. S., at 298.
In most cases, the individual's constitutionally protected interest
in his or her own physical autonomy, including the right to refuse
unwanted medical treatment, will give way to the State's interest
in preserving human life.
Cruzan, however, was not the normal case. Given the
irreversible nature of her illness and the progressive character of
her suffering,9 Nancy Cruzan's interest in refusing medical care
was incidental to her more basic interest in controlling the manner
and timing of her death. In finding that her
9 See 497 U. S., at 332, n. 2.
743
best interests would be served by cutting off the nourishment
that kept her alive, the trial court did more than simply vindicate
Cruzan's interest in refusing medical treatment; the court, in
essence, authorized affirmative conduct that would hasten her
death. When this Court reviewed the case and upheld Missouri's
requirement that there be clear and convincing evidence
establishing Nancy Cruzan's intent to have life-sustaining
nourishment withdrawn, it made two important assumptions: (1) that
there was a "liberty interest" in refusing unwanted treatment
protected by the Due Process Clause; and (2) that this liberty
interest did not "end the inquiry" because it might be outweighed
by relevant state interests.
Id., at 279. I agree with both
of those assumptions, but I insist that the source of Nancy
Cruzan's right to refuse treatment was not just a common-law rule.
Rather, this right is an aspect of a far broader and more basic
concept of freedom that is even older than the common law. 10 This
freedom embraces not merely a person's right to refuse a particular
kind of unwanted treatment, but also her interest in dignity, and
in determining the character of the memories that will survive long
after her deathY In
10 "[N]either the Bill of Rights nor the laws of sovereign
States create the liberty which the Due Process Clause protects.
The relevant constitutional provisions are limitations on the power
of the sovereign to infringe on the liberty of the citizen. The
relevant state laws either create property rights, or they curtail
the freedom of the citizen who must live in an ordered society. Of
course, law is essential to the exercise and enjoyment of
individual liberty in a complex society. But it is not the source
of liberty, and surely not the exclusive source.
"I had thought it self-evident that all men were endowed by
their Creator with liberty as one of the cardinal unalienable
rights. It is that basic freedom which the Due Process Clause
protects, rather than the particular rights or privileges conferred
by specific laws or regulations."
Meachum
11 "Nancy Cruzan's interest in life, no less than that of any
other person, includes an interest in how she will be thought of
after her death by those whose opinions mattered to her. There can
be no doubt that her life made her dear to her family and to
others. How she dies will affect how that
744
STEVENS, J., concurring in judgments
recogmzmg that the State's interests did not outweigh Nancy
Cruzan's liberty interest in refusing medical treatment,
Cruzan rested not simply on the common-law right to refuse
medical treatment, but-at least implicitly-on the even more
fundamental right to make this "deeply personal decision," id., at
289 (O'CONNOR, J., concurring).
Thus, the common-law right to protection from battery, which
included the right to refuse medical treatment in most
circumstances, did not mark "the outer limits of the substantive
sphere of liberty" that supported the Cruzan family's decision to
hasten Nancy's death.
Planned Parenthood of Southeastern Pa.
v.
Casey, 505
U. S. 833, 848 (1992). Those limits have never been precisely
defined. They are generally identified by the importance and
character of the decision confronted by the individual,
Whalen v.
Roe, 429 U. S. 589, 599-600,
n. 26 (1977). Whatever the outer limits of the concept may be, it
definitely includes protection for matters "central to personal
dignity and autonomy."
Casey, 505 U. S., at 851. It
includes
"the individual's right to make certain unusually important
decisions that will affect his own, or his family's, destiny. The
Court has referred to such decisions as implicating 'basic values,'
as being 'fundamental,' and as being dignified by history and
tradition. The character of the Court's language in these cases
brings to mind the origins of the American heritage of
freedom-the
life is remembered."
Cruzan v.
Director, Mo. Dept. of
Health, 497 U. S.
261, 344 (1990) (STEVENS, J., dissenting).
"Each of us has an interest in the kind of memories that will
survive after death. To that end, individual decisions are often
motivated by their impact on others. A member of the kind of family
identified in the trial court's findings in this case would likely
have not only a normal interest in minimizing the burden that her
own illness imposes on others, but also an interest in having their
memories of her filled predominantly with thoughts about her past
vitality rather than her current condition."
Id., at
356.
745
abiding interest in individual liberty that makes certain state
intrusions on the citizen's right to decide how he will live his
own life intolerable." Fitzgerald v. Porter Memorial
Hospital, 523 F.2d
716, 719-720 (CA7 1975) (footnotes omitted), cert. denied, 425
U. S. 916 (1976).
The
Cruzan case demonstrated that some state intrusions
on the right to decide how death will be encountered are also
intolerable. The now-deceased plaintiffs in this action may in fact
have had a liberty interest even stronger than Nancy Cruzan's
because, not only were they terminally ill, they were suffering
constant and severe pain. Avoiding intolerable pain and the
indignity of living one's final days incapacitated and in agony is
certainly "[a]t the heart of [the] liberty ... to define one's own
concept of existence, of meaning, of the universe, and of the
mystery of human life."
Casey, 505 U. S., at 851.
While I agree with the Court that
Cruzan does not decide
the issue presented by these cases,
Cruzan did give
recognition, not just to vague, unbridled notions of autonomy, but
to the more specific interest in making decisions about how to
confront an imminent death. Although there is no absolute right to
physician-assisted suicide,
Cruzan makes it clear that some
individuals who no longer have the option of deciding whether to
live or to die because they are already on the threshold of death
have a constitutionally protected interest that may outweigh the
State's interest in preserving life at all costs. The liberty
interest at stake in a case like this differs from, and is stronger
than, both the common-law right to refuse medical treatment and the
unbridled interest in deciding whether to live or die. It is an
interest in deciding how, rather than whether, a critical threshold
shall be crossed.
III
The state interests supporting a general rule banning the
practice of physician-assisted suicide do not have the same
746
STEVENS, J., concurring in judgments
force in all cases. First and foremost of these interests is
the" 'unqualified interest in the preservation of human life,'"
ante, at 728 (quoting
Cruzan, 497 U. S., at 282),
which is equated with "'the sanctity of life,'"
ante, at 728
(quoting American Law Institute, Model Penal Code § 210.5, Comment
5, p. 100 (Official Draft and Revised Comments 1980)). That
interest not only justifies-it commands-maximum protection of every
individual's interest in remaining alive, which in turn commands
the same protection for decisions about whether to commence or to
terminate life-support systems or to administer pain medication
that may hasten death. Properly viewed, however, this interest is
not a collective interest that should always outweigh the interests
of a person who because of pain, incapacity, or sedation finds her
life intolerable, but rather, an aspect of individual freedom.
Many terminally ill people find their lives meaningful even if
filled with pain or dependence on others. Some find value in living
through suffering; some have an abiding desire to witness
particular events in their families' lives; many believe it a sin
to hasten death. Individuals of different religious faiths make
different judgments and choices about whether to live on under such
circumstances. There are those who will want to continue aggressive
treatment; those who would prefer terminal sedation; and those who
will seek withdrawal from life-support systems and death by gradual
starvation and dehydration. Although as a general matter the
State's interest in the contributions each person may make to
society outweighs the person's interest in ending her life, this
interest does not have the same force for a terminally ill patient
faced not with the choice of whether to live, only of how to die.
Allowing the individual, rather than the State, to make judgments"
'about the "quality" of life that a particular individual may
enjoy,'"
ante, at 729 (quoting
Cruzan, 497 U. S., at
282), does not mean that the lives of terminally ill, disabled
people have less value than the lives of those who are healthy, see
ante, at 732. Rather, it gives
747
proper recognition to the individual's interest in choosing a
final chapter that accords with her life story, rather than one
that demeans her values and poisons memories of her. See Brief for
Bioethicists as
Amici Curiae 11; see also R. Dworkin, Life's
Dominion 213 (1993) ("Whether it is in someone's best interests
that his life end in one way rather than another depends on so much
else that is special about himabout the shape and character of his
life and his own sense of his integrity and critical interests-that
no uniform collective decision can possibly hope to serve everyone
even d ecen tly").
Similarly, the State's legitimate interests in preventing
suicide, protecting the vulnerable from coercion and abuse, and
preventing euthanasia are less significant in this context. I agree
that the State has a compelling interest in preventing persons from
committing suicide because of depression or coercion by third
parties. But the State's legitimate interest in preventing abuse
does not apply to an individual who is not victimized by abuse, who
is not suffering from depression, and who makes a rational and
voluntary decision to seek assistance in dying. Although, as the
New York Task Force report discusses, diagnosing depression and
other mental illness is not always easy, mental health workers and
other professionals expert in working with dying patients can help
patients cope with depression and pain, and help patients assess
their options. See Brief for Washington State Psychological
Association et al. as
Amici Curiae 8-10.
Relatedly, the State and
amici express the concern that
patients whose physical pain is inadequately treated will be more
likely to request assisted suicide. Encouraging the development and
ensuring the availability of adequate pain treatment is of utmost
importance; palliative care, however, cannot alleviate all pain and
suffering. See Orentlicher, Legalization of Physician Assisted
Suicide: A Very Modest Revolution, 38 Boston College L. Rev.
(Galley, p. 8) (1997) ("Greater use of palliative care would reduce
the demand for
748
STEVENS, J., concurring in judgments
assisted suicide, but it will not eliminate [it]"); see also
Brief for Coalition of Hospice Professionals as
Amici Curiae
8 (citing studies showing that "[a]s death becomes more imminent,
pain and suffering become progressively more difficult to treat").
An individual adequately informed of the care alternatives thus
might make a rational choice for assisted suicide. For such an
individual, the State's interest in preventing potential abuse and
mistake is only minimally implicated.
The final major interest asserted by the State is its interest
in preserving the traditional integrity of the medical profession.
The fear is that a rule permitting physicians to assist in suicide
is inconsistent with the perception that they serve their patients
solely as healers. But for some patients, it would be a physician's
refusal to dispense medication to ease their suffering and make
their death tolerable and dignified that would be inconsistent with
the healing role. See Block & Billings, Patient Request to
Hasten Death, 154 Archives Internal Med. 2039, 2045 (1994) (A
doctor's refusal to hasten death "may be experienced by the [dying]
patient as an abandonment, a rejection, or an expression of
inappropriate paternalistic authority"). For doctors who have
longstanding relationships with their patients, who have given
their patients advice on alternative treatments, who are attentive
to their patient's individualized needs, and who are knowledgeable
about pain symptom management and palliative care options, see
Quill, Death and Dignity, A Case of Individualized Decision Making,
324 New England J. Med. 691-694 (1991), heeding a patient's desire
to assist in her suicide would not serve to harm the
physician-patient relationship. Furthermore, because physicians are
already involved in making decisions that hasten the death of
terminally ill patients-through termination of life support,
withholding of medical treatment, and terminal sedation-there is in
fact significant tension between the traditional view of
749
the physician's role and the actual practice in a growing number
of cases.12
As the New York State Task Force on Life and the Law recognized,
a State's prohibition of assisted suicide is justified by the fact
that the "'ideal''' case in which "patients would be screened for
depression and offered treatment, effective pain medication would
be available, and all patients would have a supportive committed
family and doctor" is not the usual case. New York State Task Force
on Life and the Law, When Death Is Sought: Assisted Suicide and
Euthanasia in the Medical Context 120 (May 1994). Although, as the
Court concludes today, these
potential harms are sufficient
to support the State's general public policy against assisted
suicide, they will not always outweigh the individual liberty
12 I note that there is evidence that a significant number of
physicians support the practice of hastening death in particular
situations. A survey published in the New England Journal of
Medicine found that 56% of responding doctors in Michigan preferred
legalizing assisted suicide to an explicit ban. Bachman et al.,
Attitudes of Michigan Physicians and the Public Toward Legalizing
Physician-Assisted Suicide and Voluntary Euthanasia, 334 New
England J. Med. 303-309 (1996). In a survey of Oregon doctors, 60%
of the responding doctors supported legalizing assisted suicide for
terminally ill patients. See Lee et al., Legalizing Assisted
Suicide-Views of Physicians in Oregon, 335 New England J. Med.
310-315 (1996). Another study showed that 12% of physicians polled
in Washington State reported that they had been asked by their
terminally ill patients for prescriptions to hasten death, and
that, in the year prior to the study, 24% of those physicians had
complied with such requests. See Back, Wallace, Starks, &
Perlman, Physician-Assisted Suicide and Euthanasia in Washington
State, 275 JAMA 919-925 (1996); see also Doukas, Waterhouse,
Gorenflo, & Seld, Attitudes and Behaviors on PhysicianAssisted
Death: A Study of Michigan Oncologists, 13 J. Clinical Oncology
1055 (1995) (reporting that 18% of responding Michigan oncologists
reported active participation in assisted suicide); Slome, Moulton,
Huffine, Gorter, & Abrams, Physicians' Attitudes Toward
Assisted Suicide in AIDS, 5 J. Acquired Immune Deficiency Syndromes
712 (1992) (reporting that 24% of responding physicians who treat
AIDS patients would likely grant a patient's request for assistance
in hastening death).
750
STEVENS, J., concurring in judgments
interest of a particular patient. Unlike the Court of Appeals, I
would not say as a categorical matter that these state interests
are invalid as to the entire class of terminally ill, mentally
competent patients. I do not, however, foreclose the possibility
that an individual plaintiff seeking to hasten her death, or a
doctor whose assistance was sought, could prevail in a more
particularized challenge. Future cases will determine whether such
a challenge may succeed.
IV
In N ew York, a doctor must respect a competent person's
decision to refuse or to discontinue medical treatment even though
death will thereby ensue, but the same doctor would be guilty of a
felony if she provided her patient assistance in committing
suicide.13 Today we hold that the Equal Protection Clause is not
violated by the resulting disparate treatment of two classes of
terminally ill people who may have the same interest in hastening
death. I agree that the distinction between permitting death to
ensue from an underlying fatal disease and causing it to occur by
the administration of medication or other means provides a
constitutionally sufficient basis for the State's classification.14
Unlike the Court, however, see
Vacco, post, at 801-802, I am
not persuaded that in all cases there will in fact be a significant
difference between the intent of the physicians, the patients, or
the families in the two situations.
There may be little distinction between the intent of a
terminally ill patient who decides to remove her life support and
one who seeks the assistance of a doctor in ending her life; in
both situations, the patient is seeking to hasten a certain,
impending death. The doctor's intent might also be the same in
prescribing lethal medication as it is in terminat-
13 See
Vacco v.
Quill, post, at 797, nn. 1 and
2.
14 The American Medical Association recognized this distinction
when it supported Nancy Cruzan and continues to recognize this
distinction in its support of the States in these cases.
751
ing life support. A doctor who fails to administer medical
treatment to one who is dying from a disease could be doing so with
an intent to harm or kill that patient. Conversely, a doctor who
prescribes lethal medication does not necessarily intend the
patient's death-rather that doctor may seek simply to ease the
patient's suffering and to comply with her wishes. The illusory
character of any differences in intent or causation is confirmed by
the fact that the American Medical Association unequivocally
endorses the practice of terminal sedation-the administration of
sufficient dosages of pain-killing medication to terminally ill
patients to protect them from excruciating pain even when it is
clear that the time of death will be advanced. The purpose of
terminal sedation is to ease the suffering of the patient and
comply with her wishes, and the actual cause of death is the
administration of heavy doses of lethal sedatives. This same intent
and causation may exist when a doctor complies with a patient's
request for lethal medication to hasten her death.15
Thus, although the differences the majority notes in causation
and intent between terminating life support and assisting in
suicide support the Court's rejection of the respondents' facial
challenge, these distinctions may be inapplicable to particular
terminally ill patients and their doctors. Our holding today in
Vacco v.
Quill, post, p. 793, that the Equal
Protection Clause is not violated by New York's classification,
just like our holding in
Washington v.
Glucksberg
that the Washington statute is not invalid on its face, does not
foreclose the possibility that some applications of the New
15 If a doctor prescribes lethal drugs to be self-administered
by the patient, it is not at all clear that the physician's intent
is that the patient "be made dead,"
post, at 802 (internal
quotation marks omitted). Many patients prescribed lethal
medications never actually take them; they merely acquire some
sense of control in the process of dying that the availability of
those medications provides. See Back, supra n. 12, at 922; see also
Quill, 324 New England J. Med., at 693 (describing how some
patients fear death less when they feel they have the option of
physicianassisted suicide).
752
SOUTER, J., concurring in judgment
York statute may impose an intolerable intrusion on the
patient's freedom.
There remains room for vigorous debate about the outcome of
particular cases that are not necessarily resolved by the opinions
announced today. How such cases may be decided will depend on their
specific facts. In my judgment, however, it is clear that the
so-called "unqualified interest in the preservation of human life,"
Cruzan, 497 U. S., at 282;
ante, at 728, is not
itself sufficient to outweigh the interest in liberty that may
justify the only possible means of preserving a dying patient's
dignity and alleviating her intolerable suffering.
JUSTICE SOUTER, concurring in the judgment.
Three terminally ill individuals and four physicians who
sometimes treat terminally ill patients brought this challenge to
the Washington statute making it a crime "knowingly ... [to] ai[d]
another person to attempt suicide," Wash. Rev. Code § 9A.36.060
(1994), claiming on behalf of both patients and physicians that it
would violate substantive due process to enforce the statute
against a doctor who acceded to a dying patient's request for a
drug to be taken by the patient to commit suicide. The question is
whether the statute sets up one of those "arbitrary impositions" or
"purposeless restraints" at odds with the Due Process Clause of the
Fourteenth Amendment. Poe v. Ullman,
367 U. S. 497, 543 (1961)
(Harlan, J., dissenting). I conclude that the statute's application
to the doctors has not been shown to be unconstitutional, but I
write separately to give my reasons for analyzing the substantive
due process claims as I do, and for rejecting this one.
I
Although the terminally ill original parties have died during
the pendency of this case, the four physicians who remain
753
as respondents here 1 continue to request declaratory and
injunctive relief for their own benefit in discharging their
obligations to other dying patients who request their help.2 See,
e. g.,
Southern Pacific Terminal Co. v.
ICC,
219 U. S. 498,
515 (1911) (question was capable of repetition yet evading review).
The case reaches us on an order granting summary judgment, and we
must take as true the undisputed allegations that each of the
patients was mentally competent and terminally ill, and that each
made a knowing and voluntary choice to ask a doctor to prescribe
"medications ... to be self-administered for the purpose of
hastening ... death." Complaint' 2.3. The State does not dispute
that each faced a passage to death more agonizing both mentally and
physically, and more protracted over time, than death by suicide
with a physician's help, or that each would have chosen such a
suicide for the sake of personal dignity, apart even from relief
from pain. Each doctor in this case claims to encounter patients
like the original plaintiffs who have died, that is, mentally
competent, terminally ill, and seeking medical help in "the
voluntary self-termination of life."
Id.," 2.52.8. While
there may be no unanimity on the physician's professional
obligation in such circumstances, I accept here respondents'
representation that providing such patients with prescriptions for
drugs that go beyond pain relief to hasten death would, in these
circumstances, be consistent with standards of medical practice.
Hence, I take it to be true, as respondents say, that the
Washington statute prevents the exercise of a physician's "best
professional judgment to prescribe medications to [such] patients
in dosages that would enable them to act to hasten their own
deaths."
Id., , 2.6; see also App. 35-37, 49-51, 55-57,
73-75.
1 A nonprofit corporation known as Compassion in Dying was also
a plaintiff and appellee below but is not a party in this
Court.
2 As I will indicate in some detail below, I see the challenge
to the statute not as facial but as-applied, and I understand it to
be in narrower terms than those accepted by the Court.
754
SOUTER, J., concurring in judgment
In their brief to this Court, the doctors claim not that they
ought to have a right generally to hasten patients' imminent
deaths, but only to help patients who have made "personal decisions
regarding their own bodies, medical care, and, fundamentally, the
future course of their lives," Brief for Respondents 12, and who
have concluded responsibly and with substantial justification that
the brief and anguished remainders of their lives have lost
virtually all value to them. Respondents fully embrace the notion
that the State must be free to impose reasonable regulations on
such physician assistance to ensure that the patients they assist
are indeed among the competent and terminally ill and that each has
made a free and informed choice in seeking to obtain and use a
fatal drug. Complaint' 3.2; App. 28-41.
In response, the State argues that the interest asserted by the
doctors is beyond constitutional recognition because it has no deep
roots in our history and traditions. Brief for Petitioners 21-25.
But even aside from that, without disputing that the patients here
were competent and terminally ill, the State insists that
recognizing the legitimacy of doctors' assistance of their patients
as contemplated here would entail a number of adverse consequences
that the Washington Legislature was entitled to forestall. The nub
of this part of the State's argument is not that such patients are
constitutionally undeserving of relief on their own account, but
that any attempt to confine a right of physician assistance to the
circumstances presented by these doctors is likely to fail.
Id., at 34-35, 44-47.
First, the State argues that the right could not be confined to
the terminally ill. Even assuming a fixed definition of that term,
the State observes that it is not always possible to say with
certainty how long a person may live.
Id., at 34. It asserts
that "[t]here is no principled basis on which [the right] can be
limited to the prescription of medication for terminally ill
patients to administer to themselves" when the right's justifying
principle is as broad as "'merciful termina-
755
tion of suffering.'"
Id., at 45 (citing Y. Kamisar, Are
Laws Against Assisted Suicide Unconstitutional?, Hastings Center
Report 32, 36-37 (May-June 1993)). Second, the State argues that
the right could not be confined to the mentally competent,
observing that a person's competence cannot always be assessed with
certainty, Brief for Petitioners 34, and suggesting further that no
principled distinction is possible between a competent patient
acting independently and a patient acting through a duly appointed
and competent surrogate, id., at 46. Next, according to the State,
such a right might entail a right to or at least merge in practice
into "other forms of life-ending assistance," such as euthanasia.
Id., at 46-47. Finally, the State believes that a right to
physician assistance could not easily be distinguished from a right
to assistance from others, such as friends, family, and other
health-care workers.
Id., at 47. The State thus argues that
recognition of the substantive due process right at issue here
would jeopardize the lives of others outside the class defined by
the doctors' claim, creating risks of irresponsible suicides and
euthanasia, whose dangers are concededly within the State's
authority to address.
II
When the physicians claim that the Washington law deprives them
of a right falling within the scope of liberty that the Fourteenth
Amendment guarantees against denial without due process of law,3
they are not claiming some sort of procedural defect in the process
through which the statute has been enacted or is administered.
Their claim, rather, is that the State has no substantively
adequate justification for barring the assistance sought by the
patient and sought to be offered by the physician. Thus, we are
dealing with a claim to one of those rights sometimes described as
rights
3 The doctors also rely on the Equal Protection Clause, but that
source of law does essentially nothing in a case like this that the
Due Process Clause cannot do on its own.
756
SOUTER, J., concurring in judgment
of substantive due process and sometimes as unenumerated rights,
in view of the breadth and indeterminacy of the "due process"
serving as the claim's textual basis. The doctors accordingly
arouse the skepticism of those who find the Due Process Clause an
unduly vague or oxymoronic warrant for judicial review of
substantive state law, just as they also invoke two centuries of
American constitutional practice in recognizing unenumerated,
substantive limits on governmental action. Although this practice
has neither rested on any single textual basis nor expressed a
consistent theory (or, before
Poe v. Ullman, a much
articulated one), a brief overview of its history is instructive on
two counts. The persistence of substantive due process in our cases
points to the legitimacy of the modern justification for such
judicial review found in Justice Harlan's dissent in
Poe,4
on which I will dwell further on, while the acknowledged failures
of some of these cases point with caution to the difficulty raised
by the present claim.
Before the ratification of the Fourteenth Amendment, substantive
constitutional review resting on a theory of unenumerated rights
occurred largely in the state courts applying state constitutions
that commonly contained either due process clauses like that of the
Fifth Amendment (and later the Fourteenth) or the textual
antecedents of such clauses, re-
4 The status of the Harlan dissent in
Poe v.
Ullman, 367 U.
S. 497 (1961), is shown by the Court's adoption of its result
in
Griswold v.
Connecticut, 381 U. S. 479 (1965), and
by the Court's acknowledgment of its status and adoption of its
reasoning in
Planned Parenthood of Southeastern Pa. v.
Casey, 505 U.
S. 833, 848-849 (1992). See also
Youngberg v.
Romeo,
457 U. S. 307, 320 (1982) (citing Justice Harlan's
Poe
dissent as authority for the requirement that this Court balance
"the liberty of the individual" and "the demands of an organized
society");
Roberts v.
United States Jaycees, 468 U. S. 609, 619
(1984);
Moore v.
East Cleveland, 431 U. S. 494, 500-506,
and n. 12 (1977) (plurality opinion) (opinion for four Justices
treating Justice Harlan's
Poe dissent as a central
explication of the methodology of judicial review under the Due
Process Clause).
757
peating Magna Carta's guarantee of "the law of the land." 5 On
the basis of such clauses, or of general principles untethered to
specific constitutional language, state courts evaluated the
constitutionality of a wide range of statutes.
Thus, a Connecticut court approved a statute legitimating a
class of previous illegitimate marriages, as falling within the
terms of the "social compact," while making clear its power to
review constitutionality in those terms.
Goshen v.
Stonington, 4 Conn. 209, 225-226 (1822). In the same period,
a specialized court of equity, created under a Tennessee statute
solely to hear cases brought by the state bank against its debtors,
found its own authorization unconstitutional as "partial"
legislation violating the State Constitution's "law of the land"
clause.
Bank of the State v.
Cooper, 2 Yerg. 599,
602-608 (Tenn. 1831) (opinion of Green, J.); id., at 613-615
(opinion of Peck, J.); id., at 618-623 (opinion of Kennedy, J.).
And the middle of the 19th century brought the famous
Wynehamer case, invalidating a statute purporting to render
possession of liquor immediately illegal except when kept for
narrow, specified purposes, the state court finding the statute
inconsistent with the State's due process clause.
Wynehamer
v.
People, 13 N. Y. 378, 486-487 (1856). The statute was
deemed an excessive threat to the "fundamental rights of the
citizen" to property.
Id., at 398 (opinion of Comstock, J.).
See generally E. Corwin, Liberty Against Government 58-115 (1948)
(discussing substantive due process in the state courts before the
Civil War); T. Cooley, Constitutional Limitations *85-*129,
*351-*397.
Even in this early period, however, this Court anticipated the
developments that would presage both the Civil War and the
ratification of the Fourteenth Amendment, by making it clear on
several occasions that it too had no doubt of the
5 Coke indicates that prohibitions against deprivations without
"due process of law" originated in an English statute that
"rendred" Magna Carta's "law of the land" in such terms. See 2 E.
Coke, Institutes 50 (1797); see also E. Corwin, Liberty Against
Government 90-91 (1948).
758
SOUTER, J., concurring in judgment
judiciary's power to strike down legislation that conflicted
with important but unenumerated principles of American government.
In most such instances, after declaring its power to invalidate
what it might find inconsistent with rights of liberty and
property, the Court nevertheless went on to uphold the legislative
Acts under review. See,
e. g.,
Wilkinson v.
Leland, 2 Pet. 627, 656-661 (1829);
Calder v.
Bull, 3 Dall. 386, 386-395 (1798) (opinion of Chase, J.);
see also
Corfield v.
Coryell, 6 F. Cas. 546, 550-552
(No. 3,230) (CC ED Pa. 1823). But in
Fletcher v.
Peck, 6 Cranch 87 (1810), the Court went further. It struck
down an Act of the Georgia Legislature that purported to rescind a
sale of public land
ab initio and reclaim title for the
State, and so deprive subsequent, good-faith purchasers of property
conveyed by the original grantees. The Court rested the
invalidation on alternative sources of authority: the specific
prohibitions against bills of attainder,
ex post facto laws,
laws impairing contracts in Article I, § 10, of the Constitution;
and "general principles which are common to our free institutions,"
by which Chief Justice Marshall meant that a simple deprivation of
property by the State could not be an authentically "legislative"
Act.
Fletcher, supra, at 135-139.
Fletcher was not, though, the most telling early example
of such review. For its most salient instance in this Court before
the adoption of the Fourteenth Amendment was, of course, the case
that the Amendment would in due course overturn,
Dred Scott
v.
Sandford, 19 How. 393 (1857). Unlike
Fletcher, Dred
Scott was textually based on a Due Process Clause (in the Fifth
Amendment, applicable to the N ational Government), and it was in
reliance on that Clause's protection of property that the Court
invalidated the Missouri Compromise. 19 How., at 449-452. This
substantive protection of an owner's property in a slave taken to
the territories was traced to the absence of any enumerated power
to affect that property granted to the Congress by Article I of the
Constitution, id., at 451-452, the implication
759
being that the Government had no legitimate interest that could
support the earlier congressional compromise. The ensuing judgment
of history needs no recounting here.
After the ratification of the Fourteenth Amendment, with its
guarantee of due process protection against the States,
interpretation of the words "liberty" and "property" as used in Due
Process Clauses became a sustained enterprise, with the Court
generally describing the due process criterion in converse terms of
reasonableness or arbitrariness. That standard is fairly traceable
to Justice Bradley's dissent in the
Slaughter-House Cases,
16 Wall. 36 (1873), in which he said that a person's right to
choose a calling was an element of liberty (as the calling, once
chosen, was an aspect of property) and declared that the liberty
and property protected by due process are not truly recognized if
such rights may be "arbitrarily assailed," id., at 116.6 After
that, opinions comparable to those that preceded
Dred Scott
expressed willingness to review legislative action for consistency
with the Due Process Clause even as they upheld the laws in
question. See,
e. g., Bartemeyer v.
Iowa, 18 Wall.
129, 133-135
(1874); Munn v.
Illinois, 94 U. S. 113, 123-135
(1877);
Railroad Comm'n Cases, 116 U. S. 307, 331
(1886);
Mugler v.
6 The
Slaughter-House Cases are important, of course, for
their holding that the Privileges and Immunities Clause was no
source of any but a specific handful of substantive rights. 16
Wall., at 74-80. To a degree, then, that decision may have led the
Court to look to the Due Process Clause as a source of substantive
rights. In
Twining v.
New Jersey, 211 U. S. 78, 95-97
(1908), for example, the Court of the
Lochner Era
acknowledged the strength of the case against
Slaughter-House's interpretation of the Privileges or
Immunities Clause but reaffirmed that interpretation without
questioning its own frequent reliance on the Due Process Clause as
authorization for substantive judicial review. See also J. Ely,
Democracy and Distrust 14-30 (1980) (arguing that the Privileges
and Immunities Clause and not the Due Process Clause is the proper
warrant for courts' substantive oversight of state legislation).
But the courts' use of Due Process Clauses for that purpose
antedated the 1873 decision, as we have seen, and would in time be
supported in the
Poe dissent, as we shall see.
760
SOUTER, J., concurring in judgment
Kansas, 123
U. S. 623, 659-670 (1887). See generally Corwin,
supra,
at 121-136 (surveying the Court's early Fourteenth Amendment cases
and finding little dissent from the general principle that the Due
Process Clause authorized judicial review of substantive
statutes).
The theory became serious, however, beginning with
Allgeyer v.
Louisiana, 165 U. S. 578 (1897),
where the Court invalidated a Louisiana statute for excessive
interference with Fourteenth Amendment liberty to contract, id., at
588593, and offered a substantive interpretation of "liberty," that
in the aftermath of the so-called
Lochner Era has been
scaled back in some respects, but expanded in others, and never
repudiated in principle. The Court said that Fourteenth Amendment
liberty includes "the right of the citizen to be free in the
enjoyment of all his faculties; to be free to use them in all
lawful ways; to live and work where he will; to earn his livelihood
by any lawful calling; to pursue any livelihood or avocation; and
for that purpose to enter into all contracts which may be proper,
necessary and essential to his carrying out to a successful
conclusion the purposes above mentioned."
Id., at 589. "[W]e
do not intend to hold that in no such case can the State exercise
its police power," the Court added, but "[w]hen and how far such
power may be legitimately exercised with regard to these subjects
must be left for determination to each case as it arises."
Id., at 590.
Although this principle was unobjectionable, what followed for a
season was, in the realm of economic legislation, the echo of
Dred Scott. Allgeyer was succeeded within a decade by
Lochner v.
New York, 198 U. S. 45 (1905), and
the era to which that case gave its name, famous now for striking
down as arbitrary various sorts of economic regulations that
post-New Deal courts have uniformly thought constitutionally sound.
Compare,
e. g., id., at 62 (finding New York's maximum-hours
law for bakers "unreasonable and entirely arbitrary"), and
Adkins v.
Children's Hospital of D. c., 261
761
u. S. 525, 559 (1923) (holding a minimum-wage law "so clearly
the product of a naked, arbitrary exercise of power that it cannot
be allowed to stand under the Constitution of the United States"),
with
West Coast Hotel Co. v.
Parrish, 300 U. S. 379, 391 (1937)
(overruling
Adkins and approving a minimum-wage law on the
principle that "regulation which is reasonable in relation to its
subject and is adopted in the interests of the community is due
process"). As the parentheticals here suggest, while the cases in
the
Lochner line routinely invoked a correct standard of
constitutional arbitrariness review, they harbored the spirit of
Dred Scott in their absolutist implementation of the
standard they espoused.
Even before the deviant economic due process cases had been
repudiated, however, the more durable precursors of modern
substantive due process were reaffirming this Court's obligation to
conduct arbitrariness review, beginning with
Meyer v.
Nebraska, 262
U. S. 390 (1923). Without referring to any specific guarantee
of the Bill of Rights, the Court invoked precedents from the
Slaughter-House Cases through
Adkins to declare that
the Fourteenth Amendment protected "the right of the individual to
contract, to engage in any of the common occupations of life, to
acquire useful knowledge, to marry, establish a home and bring up
children, to worship God according to the dictates of his own
conscience, and generally to enjoy those privileges long recognized
at common law as essential to the orderly pursuit of happiness by
free men." 262 U. S., at 399. The Court then held that the same
Fourteenth Amendment liberty included a teacher's right to teach
and the rights of parents to direct their children's education
without unreasonable interference by the States, id., at 400, with
the result that Nebraska's prohibition on the teaching of foreign
languages in the lower grades was "arbitrary and without reasonable
relation to any end within the competency of the State," id., at
403. See also
Pierce v.
Society of Sisters, 268 U. S. 510, 534-536
(1925)
762
SOUTER, J., concurring in judgment
(finding that a statute that all but outlawed private schools
lacked any "reasonable relation to some purpose within the
competency of the State");
Palko v.
Connecticut,
302 U. S. 319,
327-328 (1937) ("[E]ven in the field of substantive rights and
duties the legislative judgment, if oppressive and arbitrary, may
be overridden by the courts." "Is that [injury] to which the
statute has subjected [the appellant] a hardship so acute and
shocking that our polity will not endure it? Does it violate those
fundamental principles of liberty and justice which lie at the base
of all our civil and political institutions?" (citation and
internal quotation marks omitted)).
After
Meyer and
Pierce, two further opinions took
the major steps that lead to the modern law. The first was not even
in a due process case but one about equal protection,
Skinner v.
Oklahoma ex rel. Williamson, 316 U. S. 535 (1942),
where the Court emphasized the "fundamental" nature of individual
choice about procreation and so foreshadowed not only the later
prominence of procreation as a subject of liberty protection, but
the corresponding standard of "strict scrutiny," in this Court's
Fourteenth Amendment law. See
id., at 541.
Skinner,
that is, added decisions regarding procreation to the list of
liberties recognized in
Meyer and
Pierce and loosely
suggested, as a gloss on their standard of arbitrariness, a
judicial obligation to scrutinize any impingement on such an
important interest with heightened care. In so doing, it suggested
a point that Justice Harlan would develop, that the kind and degree
of justification that a sensitive judge would demand of a State
would depend on the importance of the interest being asserted by
the individual.
Poe, 367 U. S., at 543.
The second major opinion leading to the modern doctrine was
Justice Harlan's
Poe dissent just cited, the conclusion of
which was adopted in
Griswold v.
Connecticut,
381 U. S. 479
(1965), and the authority of which was acknowledged in
Planned
Parenthood of Southeastern Pa. v.
Casey, 505 U. S. 833 (1992). See
also n. 4,
supra. The dissent is important
763
for three things that point to our responsibilities today. The
first is Justice Harlan's respect for the tradition of substantive
due process review itself, and his acknowledgment of the
Judiciary's obligation to carry it on. For two centuries American
courts, and for much of that time this Court, have thought it
necessary to provide some degree of review over the substantive
content of legislation under constitutional standards of textual
breadth. The obligation was understood before
Dred Scott and
has continued after the repudiation of
Lochner's progeny,
most notably on the subjects of segregation in public education,
Bolling v.
Sharpe, 347 U. S. 497, 500
(1954), interracial marriage,
Loving v.
Virginia, 388
U. S. 1, 12 (1967), marital privacy and contraception,
Carey
v.
Population Services Int'l, 431 U. S. 678, 684-691
(1977);
Griswold v.
Connecticut, supra, at 481-486,
abortion,
Planned Parenthood of Southeastern Pa. v.
Casey, supra, at 849, 869-879 (joint opinion of O'CONNOR,
KENNEDY, and SOUTER, JJ.);
Roe v.
Wade, 410 U. S. 113, 152-166
(1973), personal control of medical treatment,
Cruzan v.
Director, Mo. Dept. of Health, 497 U. S. 261, 287-289
(1990) (O'CONNOR, J., concurring);
id., at 302 (Brennan, J.,
dissenting);
id., at 331 (STEVENS, J., dissenting); see also
id., at 278 (majority opinion), and physical confinement,
Foucha v.
Louisiana, 504 U. S. 71, 80-83 (1992). This
enduring tradition of American constitutional practice is, in
Justice Harlan's view, nothing more than what is required by the
judicial authority and obligation to construe constitutional text
and review legislation for conformity to that text. See
Marbury v.
Madison, 1 Cranch 137 (1803). Like many
judges who preceded him and many who followed, he found it
impossible to construe the text of due process without recognizing
substantive, and not merely procedural, limitations. "Were due
process merely a procedural safeguard it would fail to reach those
situations where the deprivation of life, liberty or property was
accomplished by legislation which by operating in the future could,
given even the fairest possible procedure in ap-
764
SOUTER, J., concurring in judgment
plication to individuals, nevertheless destroy the enjoyment of
all three."
Poe, supra, at 541.7 The text of the Due Process
Clause thus imposes nothing less than an obligation to give
substantive content to the words "liberty" and "due process of
law."
Following the first point of the
Poe dissent, on the
necessity to engage in the sort of examination we conduct today,
the dissent's second and third implicitly address those cases,
already noted, that are now condemned with virtual unanimity as
disastrous mistakes of substantive due process review. The second
of the dissent's lessons is a reminder that the business of such
review is not the identification of extratextual absolutes but
scrutiny of a legislative resolution (perhaps unconscious) of
clashing principles, each quite possibly worthy in and of itself,
but each to be weighed within the history of our values as a
people. It is a comparison of the relative strengths of opposing
claims that informs the judicial task, not a deduction from some
first premise. Thus informed, judicial review still has no warrant
to substitute one reasonable resolution of the contending positions
for another, but authority to supplant the balance already struck
between the contenders only when it falls outside the realm of the
reasonable. Part III, below, deals with this second point, and also
with the dissent's third, which takes the form of an
7 Judge Johnson of the New York Court of Appeals had made the
point more obliquely a century earlier when he wrote that "the form
of this declaration of right, 'no person shall be deprived of life,
liberty or property, without due process of law,' necessarily
imports that the legislature cannot make the mere existence of the
rights secured the occasion of depriving a person of any of them,
even by the forms which belong to 'due process of law.' For if it
does not necessarily import this, then the legislative power is
absolute." And, "[t]o provide for a trial to ascertain whether a
man is in the enjoyment of [any] of these rights, and then, as a
consequence of finding that he is in the enjoyment of it, to
deprive him of it, is doing indirectly just what is forbidden to be
done directly, and reduces the constitutional provision to a
nullity."
Wynehamer v.
People, 13 N. Y. 378, 420
(1856).
765
object lesson in the explicit attention to detail that is no
less essential to the intellectual discipline of substantive due
process review than an understanding of the basic need to account
for the two sides in the controversy and to respect legislation
within the zone of reasonableness.
III
My understanding of unenumerated rights in the wake of the
Poe dissent and subsequent cases avoids the absolutist
failing of many older cases without embracing the opposite pole of
equating reasonableness with past practice described at a very
specific level. See
Planned Parenthood of Southeastern Pa.
v.
Casey, 505 U. S., at 847-849. That understanding begins
with a concept of "ordered liberty,"
Poe, 367 U. S., at 549
(Harlan, J.); see also
Griswold, 381 U. S., at 500,
comprising a continuum of rights to be free from "arbitrary
impositions and purposeless restraints,"
Poe, 367 U. S., at
543 (Harlan, J., dissenting).
"Due Process has not been reduced to any formula; its content
cannot be determined by reference to any code. The best that can be
said is that through the course of this Court's decisions it has
represented the balance which our Nation, built upon postulates of
respect for the liberty of the individual, has struck between that
liberty and the demands of organized society. If the supplying of
content to this Constitutional concept has of necessity been a
rational process, it certainly has not been one where judges have
felt free to roam where unguided speculation might take them. The
balance of which I speak is the balance struck by this country,
having regard to what history teaches are the traditions from which
it developed as well as the traditions from which it broke. That
tradition is a living thing. A decision of this Court which
radically departs from it could not long survive, while a decision
which builds on what has survived is likely to be sound. No formula
could
766
SOUTER, J., concurring in judgment
serve as a substitute, in this area, for judgment and
restraint." Id., at 542.
See also
Moore v.
East Cleveland, 431 U. S. 494, 503 (1977)
(plurality opinion of Powell, J.) ("Appropriate limits on
substantive due process come not from drawing arbitrary lines but
rather from careful 'respect for the teachings of history [and]
solid recognition of the basic values that underlie our society''')
(quoting
Griswold, supra, at 501 (Harlan, J., concurring))
.
After the
Poe dissent, as before it, this enforceable
concept of liberty would bar statutory impositions even at
relatively trivial levels when governmental restraints are
undeniably irrational as unsupported by any imaginable rationale.
See,
e. g., United States v.
Carolene Products Co.,
304 U. S. 144,
152 (1938) (economic legislation "not ... unconstitutional unless
... facts ... preclude the assumption that it rests upon some
rational basis"); see also
Poe, supra, at 545, 548 (Harlan,
J., dissenting) (referring to usual "presumption of
constitutionality" and ordinary test "going merely to the
plausibility of [a statute's] underlying rationale"). Such
instances are suitably rare. The claims of arbitrariness that mark
almost all instances of unenumerated substantive rights are those
resting on "certain interests requir[ing] particularly careful
scrutiny of the state needs asserted to justify their abridgment[,]
[c]f.
Skinner v.
Oklahoma [ex rel. Williamson,
316 U. S. 535
(1942)];
Bolling v.
Sharpe, [347 U. S. 497 (1954)],"
id., at 543; that is, interests in liberty sufficiently important
to be judged "fundamental," id., at 548; see also
id., at
541 (citing
Corfield v.
Coryell, 4 Wash. G. G. 371,
380 (GG ED Pa. 1825)). In the face of an interest this powerful a
State may not rest on threshold rationality or a presumption of
constitutionality, but may prevail only on the ground of an
interest sufficiently compelling to place within the realm of the
reasonable a refusal to recognize the individual right asserted.
Poe, supra, at 548 (Harlan, J., dissenting) (an "enactment
involv[ing] ... a most fundamental as-
767
pect of 'liberty' ... [is] subjec[t] to 'strict scrutiny''')
(quoting
Skinner v.
Oklahoma ex rel. Williamson, 316
U. S., at 541);8
Reno v.
Flores, 507 U. S. 292, 301-302
(1993) (reaffirming that due process "forbids the government to
infringe certain 'fundamental' liberty interests ... unless the
infringement is narrowly tailored to serve a compelling state
interest").9
This approach calls for a court to assess the relative "weights"
or dignities of the contending interests, and to this extent the
judicial method is familiar to the common law. Common-law method is
subject, however, to two important constraints in the hands of a
court engaged in substantive due process review. First, such a
court is bound to confine the values that it recognizes to those
truly deserving constitutional stature, either to those expressed
in constitutional text, or those exemplified by "the traditions
from which [the Nation] developed," or revealed by contrast with
"the traditions from which it broke."
Poe, 367 U. S., at 542
(Harlan, J., dissenting). "'We may not draw on our merely personal
and private notions and disregard the limits ... derived from
8We have made it plain, of course, that not every law that
incidentally makes it somewhat harder to exercise a fundamental
liberty must be justified by a compelling counterinterest. See
Casey, 505 U. S., at 872-876 (joint opinion of O'CONNOR,
KENNEDY, and SOUTER, JJ.);
Carey v.
Population Services
Int'l, 431 U. S.
678, 685-686 (1977) ("[A]n individual's [constitutionally
protected] liberty to make choices regarding contraception does not
... automatically invalidate every state regulation in this area.
The business of manufacturing and selling contraceptives may be
regulated in ways that do not [even] infringe protected individual
choices"). But a state law that creates a "substantial obstacle,"
Casey, supra, at 877, for the exercise of a fundamental
liberty interest requires a commensurably substantial justification
in order to place the legislation within the realm of the
reasonable.
9 Justice Harlan thus recognized just what the Court today
assumes, that by insisting on a threshold requirement that the
interest (or, as the Court puts it, the right) be fundamental
before anything more than rational basis justification is required,
the Court ensures that not every case will require the "complex
balancing" that heightened scrutiny entails. See
ante, at
722.
768
SOUTER, J., concurring in judgment
considerations that are fused in the whole nature of our
judicial process ... [,] considerations deeply rooted in reason and
in the compelling traditions of the legal profession.'"
Id.,
at 544-545 (quoting
Rochin v.
California, 342 U. S. 165, 170171
(1952)); see also
Palko v.
Connecticut, 302 U. S., at
325 (looking to " 'principle[s] of justice so rooted in the
traditions and conscience of our people as to be ranked as
fundamental''') (quoting
Snyder v.
Massachusetts,
291 U. S. 97, 105
(1934)).
The second constraint, again, simply reflects the fact that
constitutional review, not judicial lawmaking, is a court's
business here. The weighing or valuing of contending interests in
this sphere is only the first step, forming the basis for
determining whether the statute in question falls inside or outside
the zone of what is reasonable in the way it resolves the conflict
between the interests of state and individual. See,
e. g., Poe,
supra, at 553 (Harlan, J., dissenting);
Youngberg v.
Romeo, 457 U.
S. 307, 320-321 (1982). It is no justification for judicial
intervention merely to identify a reasonable resolution of
contending values that differs from the terms of the legislation
under review. It is only when the legislation's justifying
principle, critically valued, is so far from being commensurate
with the individual interest as to be arbitrarily or pointlessly
applied that the statute must give way. Only if this standard
points against the statute can the individual claimant be said to
have a constitutional right. See
Cruzan v.
Director, Mo.
Dept. of Health, 497 U. S., at 279 ("[D]etermining that a
person has a 'liberty interest' under the Due Process Clause does
not end the inquiry; 'whether [the individual's] constitutional
rights have been violated must be determined by balancing his
liberty interests against the relevant state interests''') (quoting
Youngberg v.
Romeo, supra, at 321).10
10 Our cases have used various terms to refer to fundamental
liberty interests, see,
e. g.,
Poe, 367 U. S., at 545
(Harlan, J., dissenting) (" 'basic liberty''') (quoting
Skinner v.
Oklahoma ex rel. Williamson, 316 U. S. 535,
769
The
Poe dissent thus reminds us of the nature of review
for reasonableness or arbitrariness and the limitations entailed by
it. But the opinion cautions against the repetition of past error
in another way as well, more by its example than by any particular
statement of constitutional method: it reminds us that the process
of substantive review by reasoned judgment,
Poe, 367 U. S.,
at 542-544, is one of close criticism going to the details of the
opposing interests and to their relationships with the historically
recognized principles that lend them weight or value.
Although the
Poe dissent disclaims the possibility of any
general formula for due process analysis (beyond the basic analytic
structure just described), see id., at 542, 544, Justice Harlan of
course assumed that adjudication under the Due Process Clauses is
like any other instance of judgment dependent on common-law method,
being more or less persuasive according to the usual canons of
critical discourse. See also
Casey, 505 U. S., at 849 ("The
inescapable fact is that adjudication of substantive due process
claims may call upon the Court in interpreting the Constitution to
exercise that same capacity which by tradition courts always have
exercised: reasoned judgment"). When identifying and assessing the
competing interests of liberty and authority, for ex-
541 (1942));
Poe, supra, at 543 (Harlan, J., dissenting)
("certain interests" must bring "particularly careful scrutiny");
Casey, 505 U. S., at 851 ("protected liberty");
Cruzan v.
Director, Mo. Dept. of Health, 497 U. S. 261, 278 (1990)
("constitutionally protected liberty interest");
Youngberg
v.
Romeo, 457 U. S., at 315 ("liberty interests"), and at
times we have also called such an interest a "right" even before
balancing it against the government's interest, see,
e. g.,
Roe v.
Wade, 410 U. S. 113, 153-154
(1973);
Carey v.
Population Services Int'l, supra, at
686, 688, and n. 5;
Poe, supra, at 541 ("rights 'which are
...
fundamental''') (quoting
Cor field v.
Coryell, 4 Wash. C. C. 371, 380 (CC ED Pa. 1825)). Precision
in terminology, however, favors reserving the label "right" for
instances in which the individual's liberty interest actually
trumps the government's countervailing interests; only then does
the individual have anything legally enforceable as against the
State's attempt at regulation.
770
SOUTER, J., concurring in judgment
ample, the breadth of expression that a litigant or a judge
selects in stating the competing principles will have much to do
with the outcome and may be dispositive. As in any process of
rational argumentation, we recognize that when a generally accepted
principle is challenged, the broader the attack the less likely it
is to succeed. The principle's defenders will, indeed, often try to
characterize any challenge as just such a broadside, perhaps by
couching the defense as if a broadside attack had occurred. So the
Court in
Dred Scott treated prohibition of slavery in the
Territories as nothing less than a general assault on the concept
of property. See 19 How., at 449-452.
Just as results in substantive due process cases are tied to the
selections of statements of the competing interests, the
acceptability of the results is a function of the good reasons for
the selections made. It is here that the value of common-law method
becomes apparent, for the usual thinking of the common law is
suspicious of the all-or-nothing analysis that tends to produce
legal petrification instead of an evolving boundary between the
domains of old principles. Common-law method tends to pay respect
instead to detail, seeking to understand old principles afresh by
new examples and new counterexamples. The "tradition is a living
thing,"
Poe, 367 U. S., at 542 (Harlan, J., dissenting),
albeit one that moves by moderate steps carefully taken. "The
decision of an apparently novel claim must depend on grounds which
follow closely on well-accepted principles and criteria. The new
decision must take its place in relation to what went before and
further [cut] a channel for what is to come."
Id., at 544
(Harlan, J., dissenting) (internal quotation marks omitted). Exact
analysis and characterization of any due process claim are critical
to the method and to the result.
So, in
Poe, Justice Harlan viewed it as essential to the
plaintiffs' claimed right to use contraceptives that they sought to
do so within the privacy of the marital bedroom. This detail in
fact served two crucial and complementary
771
functions, and provides a lesson for today. It rescued the
individuals' claim from a breadth that would have threatened all
state regulation of contraception or intimate relations;
extramarital intimacy, no matter how privately practiced, was
outside the scope of the right Justice Harlan would have recognized
in that case. See id., at 552-553. It was, moreover, this same
restriction that allowed the interest to be valued as an aspect of
a broader liberty to be free from all unreasonable intrusions into
the privacy of the home and the family life within it, a liberty
exemplified in constitutional provisions such as the Third and
Fourth Amendments, in prior decisions of the Court involving
unreasonable intrusions into the home and family life, and in the
then-prevailing status of marriage as the sole lawful locus of
intimate relations.
Id., at 548, 551.11 The individuals'
interest was therefore at its peak in
Poe, because it was
supported by a principle that distinguished of its own force
between areas in which government traditionally had regulated
(sexual relations outside of marriage) and those in which it had
not (private marital intimacies), and thus was broad enough to
cover the claim at hand without being so broad as to be shotthrough
by exceptions.
11 Thus, as the
Poe dissent illustrates, the task of
determining whether the concrete right claimed by an individual in
a particular case falls within the ambit of a more generalized
protected liberty requires explicit analysis when what the
individual wants to do could arguably be characterized as belonging
to different strands of our legal tradition requiring different
degrees of constitutional scrutiny. See also Tribe & Dorf,
Levels of Generality in the Definition of Rights, 57 U. Chi. L.
Rev. 1057, 1091 (1990) (abortion might conceivably be assimilated
either to the tradition regarding women's reproductive freedom in
general, which places a substantial burden of justification on the
State, or to the tradition regarding protection of fetuses, as
embodied in laws criminalizing feticide by someone other than the
mother, which generally requires only rationality on the part of
the State). Selecting among such competing characterizations
demands reasoned judgment about which broader principle, as
exemplified in the concrete privileges and prohibitions embodied in
our legal tradition, best fits the particular claim asserted in a
particular case.
772
SOUTER, J., concurring in judgment
On the other side of the balance, the State's interest in
Poe was not fairly characterized simply as preserving sexual
morality, or doing so by regulating contraceptive devices. Just as
some of the earlier cases went astray by speaking without nuance of
individual interests in property or autonomy to contract for labor,
so the State's asserted interest in
Poe was not immune to
distinctions turning (at least potentially) on the precise purpose
being pursued and the collateral consequences of the means chosen,
see id., at 547-548. It was assumed that the State might
legitimately enforce limits on the use of contraceptives through
laws regulating divorce and annulment, or even through its tax
policy, ibid., but not necessarily be justified in criminalizing
the same practice in the marital bedroom, which would entail the
consequence of authorizing state enquiry into the intimate
relations of a married couple who chose to close their door,
id., at 548-549. See also
Casey, 505 U. S., at 869
(strength of State's interest in potential life varies depending on
precise context and character of regulation pursuing that
interest).
The same insistence on exactitude lies behind questions, in
current terminology, about the proper level of generality at which
to analyze claims and counterclaims, and the demand for fitness and
proper tailoring of a restrictive statute is just another way of
testing the legitimacy of the generality at which the government
sets up its justification.12 We may
12 The dual dimensions of the strength and the fitness of the
government's interest are succinctly captured in the so-called
"compelling interest test," under which regulations that
substantially burden a constitutionally protected (or
"fundamental") liberty may be sustained only if "narrowly tailored
to serve a compelling state interest,"
Reno v.
Flores, 507 U.
S. 292, 302 (1993); see also,
e. g., Roe v.
Wade,
410 U. S., at 155;
Carey v.
Population Services
Int'l, 431 U. S., at 686. How compelling the interest and how
narrow the tailoring must be will depend, of course, not only on
the substantiality of the individual's own liberty interest, but
also on the extent of the burden placed upon it, see
Casey,
505 U. S., at 871-874 (opinion of O'CONNOR, KENNEDY, and SOUTER,
JJ.);
Carey, supra, at 686.
773
therefore classify Justice Harlan's example of proper analysis
in any of these ways: as applying concepts of normal critical
reasoning, as pointing to the need to attend to the levels of
generality at which countervailing interests are stated, or as
examining the concrete application of principles for fitness with
their own ostensible justifications. But whatever the categories in
which we place the dissent's example, it stands in marked contrast
to earlier cases whose reasoning was marked by comparatively less
discrimination, and it points to the importance of evaluating the
claims of the parties now before us with comparable detail. For
here we are faced with an individual claim not to a right on the
part of just anyone to help anyone else commit suicide under any
circumstances, but to the right of a narrow class to help others
also in a narrow class under a set of limited circumstances. And
the claimants are met with the State's assertion, among others,
that rights of such narrow scope cannot be recognized without
jeopardy to individuals whom the State may concededly protect
through its regulations.
IV A
Respondents claim that a patient facing imminent death, who
anticipates physical suffering and indignity, and is capable of
responsible and voluntary choice, should have a right to a
physician's assistance in providing counsel and drugs to be
administered by the patient to end life promptly. Complaint , 3.1.
They accordingly claim that a physician must have the corresponding
right to provide such aid, contrary to the provisions of Wash. Rev.
Code § 9A.36.060 (1994). I do not understand the argument to rest
on any assumption that rights either to suicide or to assistance in
committing it are historically based as such. Respondents, rather,
acknowledge the prohibition of each historically, but rely on the
fact that to a substantial extent the State has repudiated that
history. The result of this, respondents say, is to open
774
SOUTER, J., concurring in judgment
the door to claims of such a patient to be accorded one of the
options open to those with different, traditionally cognizable
claims to autonomy in deciding how their bodies and minds should be
treated. They seek the option to obtain the services of a physician
to give them the benefit of advice and medical help, which is said
to enjoy a tradition so strong and so devoid of specifically
countervailing state concern that denial of a physician's help in
these circumstances is arbitrary when physicians are generally free
to advise and aid those who exercise other rights to bodily
autonomy.
1
The dominant western legal codes long condemned suicide and
treated either its attempt or successful accomplishment as a crime,
the one subjecting the individual to penalties, the other
penalizing his survivors by designating the suicide's property as
forfeited to the government. See 4 W. Blackstone, Commentaries
*188-*189 (commenting that English law considered suicide to be
"ranked ... among the highest crimes" and deemed persuading another
to commit suicide to be murder); see generally Marzen, O'Dowd,
Crone, & Balch, Suicide: A Constitutional Right?, 24 Duquesne
L. Rev. 1, 56-63 (1985). While suicide itself has generally not
been considered a punishable crime in the United States, largely
because the common-law punishment of forfeiture was rejected as
improperly penalizing an innocent family, see id., at 98-99, most
States have consistently punished the act of assisting a suicide as
either a common-law or statutory crime and some continue to view
suicide as an unpunishable crime. See generally id., at 67-100,
148-242.13 Criminal prohibi-
13Washington and New York are among the minority of States to
have criminalized attempted suicide, though neither State still
does so. See Brief for Members of the New York and Washington State
Legislatures as
Amicus Curiae 15, n. 8 (listing state
statutes). The common law governed New York as a Colony and the New
York Constitution of 1777 recognized the common law, N. Y. Const.
of 1777, Art. XXXV, and the state legislature recognized common-law
crimes by statute in 1788. See Act of
775
tions on such assistance remain widespread, as exemplified in
the Washington statute in question here.14
The principal significance of this history in the State of
Washington, according to respondents, lies in its repudiation
Feb. 21,1788, ch. 37, §2, 1788 N. Y. Laws 664 (codified at 2 N.
Y. Laws 73 (Greenleaf 1792)). In 1828, New York changed the
common-law offense of assisting suicide from murder to manslaughter
in the first degree. See 2 N. Y. Rev. Stat. pt. 4, ch. 1, tit. 2,
art. 1, § 7, p. 661 (1829). In 1881, New York adopted a new penal
code making attempted suicide a crime punishable by two years in
prison, a fine, or both, and retaining the criminal prohibition
against assisting suicide as manslaughter in the first degree. Act
of July 26, 1881, ch. 676, §§ 172-178, 1881 N. Y. Laws (3 Penal
Code), pp. 42-43 (codified at 4 N. Y. Consolidated Laws, Penal Law
§§ 23002306, pp. 2809-2810 (1909)). In 1919, New York repealed the
statutory provision making attempted suicide a crime. See Act of
May 5, 1919, ch. 414, § 1, 1919 N. Y. Laws 1193. The 1937 New York
Report of the Law Revision Commission found that the history of the
ban on assisting suicide was "traceable into the ancient common law
when a suicide or
felo de se was guilty of crime punishable
by forfeiture of his goods and chattels." State of New York, Report
of the Law Revision Commission for 1937, p. 830. The report stated
that since New York had removed "all stigma [of suicide] as a
crime" and that "[s]ince liability as an accessory could no longer
hinge upon the crime of a principal, it was necessary to define it
as a substantive offense."
Id., at 831. In 1965, New York
revised its penal law, providing that a "person is guilty of
manslaughter in the second degree when ... he intentionally causes
or aids another person to commit suicide." Penal Law, ch. 1030,
1965 N. Y. Laws 2387 (codified at N. Y. Penal Law § 125.15(3)
(McKinney 1975)).
Washington's first territorial legislature designated assisting
another "in the commission of self-murder" to be manslaughter, see
Act of Apr. 28, 1854, § 17, 1854 Wash. Laws 78, and reenacted the
provision in 1869 and 1873, see Act of Dec. 2, 1869, § 17, 1869
Wash. Laws 201; Act of Nov. 10, 1873, § 19, 1873 Wash. Laws 184
(codified at Wash. Code § 794 (1881)). In 1909, the state
legislature enacted a law based on the 1881 New York law and a
similar one enacted in Minnesota, see Marzen, O'Dowd, Crone, &
Balch, 24 Duquesne L. Rev., at 206, making attempted suicide a
crime punishable by two years in prison or a fine, and retaining
the criminal prohibition against assisting suicide, designating it
manslaughter. See Criminal Code, ch. 249, §§ 133-137, 1909 Wash.
Laws, 11th Sess., 890, 929 (codified at Remington & Ballinger's
Wash. Code §§ 2385-2389
[Footnote 14 is on p. 776J
776
SOUTER, J., concurring in judgment
of the old tradition to the extent of eliminating the criminal
suicide prohibitions. Respondents do not argue that the State's
decision goes further, to imply that the State has repudiated any
legitimate claim to discourage suicide or to limit its
encouragement. The reasons for the decriminalization, after all,
may have had more to do with difficulties of law enforcement than
with a shift in the value ascribed to
(1910)). In 1975, the Washington Legislature repealed these
provisions, see Wash. Crim. Code, 1975, ch. 260, § 9A.92.010
(213-217), 1975 Wash. Laws 817, 858, 866, and enacted the ban on
assisting suicide at issue in this case, see Wash. Crim. Code,
1975, ch. 260, § 9A.36.060, 1975 Wash. Laws 817, 836, codified at
Rev. Wash. Code § 9A.36.060 (1977). The decriminalization of
attempted suicide reflected the view that a person compelled to
attempt it should not be punished if the attempt proved
unsuccessful. See
Compassion in Dying v.
Washington,
850 F. Supp. 1454, 1464, n. 9 (WD Wash. 1994) (citing Legislative
Council Judiciary Committee, Report on the Revised Washington
Criminal Code 153 (Dec. 3, 1970).
14 Numerous States have enacted statutes prohibiting assisting a
suicide.
See,
e. g., Alaska Stat. Ann. § 11.41.120(a)(2) (1996);
Ariz. Rev. Stat. Ann. § 13-1103(A)(3) (Supp. 1996-1997); Ark. Code
Ann. § 5-10-104(a)(2) (1993); Cal. Penal Code Ann. §401 (West
1988); Colo. Rev. Stat. § 18-3-104(1)(b) (Supp. 1996); Conn. Gen.
Stat. § 53a-56(a)(2) (1997); Del. Code Ann., Tit. 11, § 645 (1995);
Fla. Stat. § 782.08 (1991); Ga. Code Ann. § 16-5-5(b) (1996); Haw.
Rev. Stat. § 707-702(1)(b) (1993); Ill. Compo Stat., ch. 720, §
5/12-31 (1993); Ind. Code §§35-42-1-2 to 35-42-1-2.5 (1994 and
Supp. 1996); Iowa Code Ann. § 707 A.2 (West Supp. 1997); Kan. Stat.
Ann. § 21-3406 (1995); Ky. Rev. Stat. Ann. §216.302 (Michie 1994);
La. Rev. Stat. Ann. § 14:32.12 (West Supp. 1997); Me. Rev. Stat.
Ann., Tit. 17-A, § 204 (1983); Mich. Compo Laws Ann. § 752.1027
(West Supp. 1997-1998); Minn. Stat. § 609.215 (1996); Miss. Code
Ann. § 97-3-49 (1994); Mo. Rev. Stat. § 565.023.1(2) (1994); Mont.
Code Ann. §45-5-105 (1995); Neb. Rev. Stat. §28-307 (1995); N. H.
Rev. Stat. Ann. §630:4 (1996); N. J. Stat. Ann.
§2C:11-6
(West 1995); N. M. Stat. Ann. § 30-2-4 (1996); N. Y. Penal Law §
120.30 (McKinney 1987); N. D. Cent. Code § 12.1-16-04 (Supp. 1995);
Okla. Stat., Tit. 21, §§813-815 (1983); Ore. Rev. Stat. §
163.125(1)(b) (1991); Pa. Stat. Ann., Tit. 18, § 2505 (Purdon
1983); R. 1. Gen. Laws §§ 11-60-1 through 11-60-5 (Supp. 1996); S.
D. Codified Laws §22-16-37 (1988); Tenn. Code Ann. §39-13-216
(Supp. 1996); Tex. Penal Code Ann. § 22.08 (1994); Wash. Rev. Code
§ 9A.36.060 (1994); Wis. Stat. § 940.12 (1993-1994). See also P. R.
Laws Ann., Tit. 33, § 4009 (1984).
777
life in various circumstances or in the perceived legitimacy of
taking one's own. See,
e. g., Kamisar, Physician-Assisted
Suicide: The Last Bridge to Active Voluntary Euthanasia, in
Euthanasia Examined 225, 229 (J. Keown ed. 1995); CeloCruz,
Aid-in-Dying: Should We Decriminalize Physician-Assisted Suicide
and Physician-Committed Euthanasia?, 18 Am. J. L. & Med. 369,
375 (1992); Marzen, O'Dowd, Crone, & Balch, 24 Duquesne L.
Rev., at 98-99. Thus it may indeed make sense for the State to take
its hands off suicide as such, while continuing to prohibit the
sort of assistance that would make its commission easier. See,
e. g., American Law Institute, Model Penal Code § 210.5,
Comment 5 (1980). Decriminalization does not, then, imply the
existence of a constitutionalliberty interest in suicide as such;
it simply opens the door to the assertion of a cognizable liberty
interest in bodily integrity and associated medical care that would
otherwise have been inapposite so long as suicide, as well as
assisting a suicide, was a criminal offense.
This liberty interest in bodily integrity was phrased in a
general way by then-Judge Cardozo when he said, "[e]very human
being of adult years and sound mind has a right to determine what
shall be done with his own body" in relation to his medical needs.
Schloendorff v.
Society of New York Hospital, 211 N.
Y. 125, 129, 105 N. E. 92, 93 (1914). The familiar examples of this
right derive from the common law of battery and include the right
to be free from medical invasions into the body,
Cruzan v.
Director, Mo. Dept. of Health, 497 U. S., at 269-279, as
well as a right generally to resist enforced medication, see
Washington v.
Harper, 494 U. S. 210, 221-222,
229 (1990). Thus "[i]t is settled now ... that the Constitution
places limits on a State's right to interfere with a person's most
basic decisions about ... bodily integrity."
Casey, 505 U.
S., at 849 (citations omitted); see also
Cruzan, 497 U. S.,
at 278;
id., at 288 (O'CONNOR, J., concurring);
Washington v.
Harper, supra, at 221-222;
Winston v.
Lee, 470 U. S. 753, 761-762
(1985);
Rochin v.
California, 342
778
SOUTER, J., concurring in judgment
u. S., at 172. Constitutional recognition of the right to bodily
integrity underlies the assumed right, good against the State, to
require physicians to terminate artificial life support,
Cruzan,
supra, at 279 ("[WJe assume that the United States Constitution
would grant a competent person a constitutionally protected right
to refuse lifesaving hydration and nutrition"), and the affirmative
right to obtain medical intervention to cause abortion, see
Casey, supra, at 857, 896; cf.
Roe v.
Wade,
410 U. S., at 153.
It is, indeed, in the abortion cases that the most telling
recognitions of the importance of bodily integrity and the
concomitant tradition of medical assistance have occurred. In
Roe v.
Wade, the plaintiff contended that the Texas
statute making it criminal for any person to "procure an abortion,"
id., at 117, for a pregnant woman was unconstitutional insofar as
it prevented her from "terminat[ing] her pregnancy by an abortion
'performed by a competent, licensed physician, under safe, clinical
conditions,'" id., at 120, and in striking down the statute we
stressed the importance of the relationship between patient and
physician, see id., at 153, 156.
The analogies between the abortion cases and this one are
several. Even though the State has a legitimate interest in
discouraging abortion, see
Casey, supra, at 871 (joint
opinion of O'CONNOR, KENNEDY, and SOUTER, JJ.);
Roe, 410 U.
S., at 162, the Court recognized a woman's right to a physician's
counsel and care. Like the decision to commit suicide, the decision
to abort potential life can be made irresponsibly and under the
influence of others, and yet the Court has held in the abortion
cases that physicians are fit assistants. Without physician
assistance in abortion, the woman's right would have too often
amounted to nothing more than a right to self-mutilation, and
without a physician to assist in the suicide of the dying, the
patient's right will often be confined to crude methods of causing
death, most shocking and painful to the decedent's survivors.
779
There is, finally, one more reason for claiming that a
physician's assistance here would fall within the accepted
tradition of medical care in our society, and the abortion cases
are only the most obvious illustration of the further point. While
the Court has held that the performance of abortion procedures can
be restricted to physicians, the Court's opinion in
Roe
recognized the doctors' role in yet another way. For, in the course
of holding that the decision to perform an abortion called for a
physician's assistance, the Court recognized that the good
physician is not just a mechanic of the human body whose services
have no bearing on a person's moral choices, but one who does more
than treat symptoms, one who ministers to the patient. See
id., at 153; see also
Griswold v.
Connecticut,
381 U. S., at 482 ("This law ... operates directly on an intimate
relation of husband and wife and their physician's role in one
aspect of that relation"); see generally R. Cabot, Ether Day
Address, Boston Medical and Surgical J. 287, 288 (1920). This idea
of the physician as serving the whole person is a source of the
high value traditionally placed on the medical relationship. Its
value is surely as apparent here as in the abortion cases, for just
as the decision about abortion is not directed to correcting some
pathology, so the decision in which a dying patient seeks help is
not so limited. The patients here sought not only an end to pain
(which they might have had, although perhaps at the price of
stupor) but an end to their short remaining lives with a dignity
that they believed would be denied them by powerful pain
medication, as well as by their consciousness of dependency and
helplessness as they approached death. In that period when the end
is imminent, they said, the decision to end life is closest to
decisions that are generally accepted as proper instances of
exercising autonomy over one's own body, instances recognized under
the Constitution and the State's own law, instances in which the
help of physicians is accepted as falling within the traditional
norm.
780
SOUTER, J., concurring in judgment
Respondents argue that the State has in fact already recognized
enough evolving examples of this tradition of patient care to
demonstrate the strength of their claim. Washington, like other
States, authorizes physicians to withdraw life-sustaining medical
treatment and artificially delivered food and water from patients
who request it, even though such actions will hasten death. See
Wash. Rev. Code §§ 70.122.110, 70.122.051 (1994); see generally
Notes to Uniform Rights of the Terminally III Act, 9B U. L. A.
168-169 (Supp. 1997) (listing state statutes). The State permits
physicians to alleviate anxiety and discomfort when withdrawing
artificial life-supporting devices by administering medication that
will hasten death even further. And it generally permits physicians
to administer medication to patients in terminal conditions when
the primary intent is to alleviate pain, even when the medication
is so powerful as to hasten death and the patient chooses to
receive it with that understanding. See Wash. Rev. Code §
70.122.010 (1994); see generally Rousseau, Terminal Sedation in the
Care of Dying Patients, 156 Archives of Internal Medicine 1785
(1996); Truog, Berde, Mitchell, & Grier, Barbiturates in the
Care of the Terminally Ill, 327 New Eng. J. Med. 1678 (1992).15
15 Other States have enacted similar provisions, some
categorically authorizing such pain treatment, see,
e. g.,
Ind. Code § 35-42-1-2.5(a)(1) (Supp. 1996) (ban on assisted suicide
does not apply to licensed health-care provider who administers or
dispenses medications or procedures to relieve pain or discomfort,
even if such medications or procedures hasten death, unless
provider intends to cause death); Iowa Code Ann. § 707 A.3.1 (West
Supp. 1997) (same); Ky. Rev. Stat. Ann. § 216.304 (Michie 1997)
(same); Minn. Stat. Ann. § 609.215(3) (West Supp. 1997) (same);
Ohio Rev. Code Ann. §§2133.11(A)(6), 2133.12(E)(1) (1994); R. 1.
Gen. Laws § 11-60-4 (Supp. 1996) (same); S. D. Codified Laws
§22-16-37.1 (Supp. 1997); see Mich. Compo Laws Ann. § 752.1027(3)
(West Supp. 1997); Tenn. Code Ann. § 39-13-216(b)(2) (1996); others
permit patients to sign health-care directives in which they
authorize pain treatment even if it hastens death. See,
e.
g., Me. Rev. Stat. Ann., Tit. 18-A, §§ 5-804, 5-809 (1996); N. M.
Stat. Ann. §§24-7A-4, 24-7A-9 (Supp. 1995); S. C. Code Ann.
§62-5-504 (Supp. 1996); Va. Code Ann. §§ 54.1-2984, 4.1-2988
(1994).
781
2
The argument supporting respondents' position thus progresses
through three steps of increasing forcefulness. First, it
emphasizes the decriminalization of suicide. Reliance on this fact
is sanctioned under the standard that looks not only to the
tradition retained, but to society's occasional choices to reject
traditions of the legal past. See
Poe v.
Ullman, 367
U. S., at 542 (Harlan, J., dissenting). While the common law
prohibited both suicide and aiding a suicide, with the prohibition
on aiding largely justified by the primary prohibition on
self-inflicted death itself, see,
e. g., American Law
Institute, Model Penal Code § 210.5, Comment 1, at 92-93, and n. 7,
the State's rejection of the traditional treatment of the one
leaves the criminality of the other open to questioning that
previously would not have been appropriate. The second step in the
argument is to emphasize that the State's own act of
decriminalization gives a freedom of choice much like the
individual's option in recognized instances of bodily autonomy. One
of these, abortion, is a legal right to choose in spite of the
interest a State may legitimately invoke in discouraging the
practice, just as suicide is now subject to choice, despite a state
interest in discouraging it. The third step is to emphasize that
respondents claim a right to assistance not on the basis of some
broad principle that would be subject to exceptions if that
continuing interest of the State's in discouraging suicide were to
be recognized at all. Respondents base their claim on the
traditional right to medical care and counsel, subject to the
limiting conditions of informed, responsible choice when death is
imminent, conditions that support a strong analogy to rights of
care in other situations in which medical counsel and assistance
have been available as a matter of course. There can be no stronger
claim to a physician's assistance than at the time when death is
imminent, a moral judgment implied by the State's own recognition
of the legitimacy of medical procedures necessarily hastening the
moment of impending death.
782
SOUTER, J., concurring in judgment
In my judgment, the importance of the individual interest here,
as within that class of "certain interests" demanding careful
scrutiny of the State's contrary claim, see
Poe, supra, at
543, cannot be gainsaid. Whether that interest might in some
circumstances, or at some time, be seen as "fundamental" to the
degree entitled to prevail is not, however, a conclusion that I
need draw here, for I am satisfied that the State's interests
described in the following section are sufficiently serious to
defeat the present claim that its law is arbitrary or
purposeless.
B
The State has put forward several interests to justify the
Washington law as applied to physicians treating terminally ill
patients, even those competent to make responsible choices:
protecting life generally, Brief for Petitioners 33, discouraging
suicide even if knowing and voluntary, id., at 37-38, and
protecting terminally ill patients from involuntary suicide and
euthanasia, both voluntary and nonvoluntary, id., at 34-35.
It is not necessary to discuss the exact strengths of the first
two claims of justification in the present circumstances, for the
third is dispositive for me. That third justification is different
from the first two, for it addresses specific features of
respondents' claim, and it opposes that claim not with a moral
judgment contrary to respondents', but with a recognized state
interest in the protection of nonresponsible individuals and those
who do not stand in relation either to death or to their physicians
as do the patients whom respondents describe. The State claims
interests in protecting patients from mistakenly and involuntarily
deciding to end their lives, and in guarding against both voluntary
and involuntaryeuthanasia. Leaving aside any difficulties in coming
to a clear concept of imminent death, mistaken decisions may result
from inadequate palliative care or a terminal prognosis that turns
out to be error; coercion and abuse may stem from the large medical
bills that family members cannot bear
783
or unreimbursed hospitals decline to shoulder. Voluntary and
involuntary euthanasia may result once doctors are authorized to
prescribe lethal medication in the first instance, for they might
find it pointless to distinguish between patients who administer
their own fatal drugs and those who wish not to, and their
compassion for those who suffer may obscure the distinction between
those who ask for death and those who may be unable to request it.
The argument is that a progression would occur, obscuring the line
between the ill and the dying, and between the responsible and the
unduly influenced, until ultimately doctors and perhaps others
would abuse a limited freedom to aid suicides by yielding to the
impulse to end another's suffering under conditions going beyond
the narrow limits the respondents propose. The State thus argues,
essentially, that respondents' claim is not as narrow as it sounds,
simply because no recognition of the interest they assert could be
limited to vindicating those interests and affecting no others. The
State says that the claim, in practical effect, would entail
consequences that the State could, without doubt, legitimately act
to prevent.
The mere assertion that the terminally sick might be pressured
into suicide decisions by close friends and family members would
not alone be very telling. Of course that is possible, not only
because the costs of care might be more than family members could
bear but simply because they might naturally wish to see an end of
suffering for someone they love. But one of the points of
restricting any right of assistance to physicians would be to
condition the right on an exercise of judgment by someone qualified
to assess the patient's responsible capacity and detect the
influence of those outside the medical relationship.
The State, however, goes further, to argue that dependence on
the vigilance of physicians will not be enough. First, the lines
proposed here (particularly the requirement of a knowing and
voluntary decision by the patient) would be more difficult to draw
than the lines that have limited
784
SOUTER, J., concurring in judgment
other recently recognized due process rights. Limiting a State
from prosecuting use of artificial contraceptives by married
couples posed no practical threat to the State's capacity to
regulate contraceptives in other ways that were assumed at the time
of
Poe to be legitimate; the trimester measurements of
Roe and the viability determination of
Casey were
easy to make with a real degree of certainty. But the knowing and
responsible mind is harder to assess.16 Second, this difficulty
could become the greater by combining with another fact within the
realm of plausibility, that physicians simply would not be
assiduous to preserve the line. They have compassion, and those who
would be willing to assist in suicide at all might be the most
susceptible to the wishes of a patient, whether the patient was
technically quite responsible or not. Physicians, and their
hospitals, have their own financial incentives, too, in this new
age of managed care. Whether acting from compassion or under
16While it is also more difficult to assess in cases involving
limitations on life incidental to pain medication and the
disconnection of artificial life support, there are reasons to
justify a lesser concern with the punctilio of responsibility in
these instances. The purpose of requesting and giving the
medication is presumably not to cause death but to relieve the pain
so that the State's interest in preserving life is not
unequivocally implicated by the practice; and the importance of
pain relief is so clear that there is less likelihood that
relieving pain would run counter to what a responsible patient
would choose, even with the consequences for life expectancy. As
for ending artificial life support, the State again may see its
interest in preserving life as weaker here than in the general case
just because artificiallife support preserves life when nature
would not; and, because such life support is a frequently offensive
bodily intrusion, there is a lesser reason to fear that a decision
to remove it would not be the choice of one fully responsible.
Where, however, a physician writes a prescription to equip a
patient to end life, the prescription is written to serve an
affirmative intent to die (even though the physician need not and
probably does not characteristically have an intent that the
patient die but only that the patient be equipped to make the
decision). The patient's responsibility and competence are
therefore crucial when the physician is presented with the
request.
785
some other influence, a physician who would provide a drug for a
patient to administer might well go the further step of
administering the drug himself; so, the barrier between assisted
suicide and euthanasia could become porous, and the line between
voluntary and involuntary euthanasia as wellP The case for the
slippery slope is fairly made out here, not because recognizing one
due process right would leave a court with no principled basis to
avoid recognizing another, but because there is a plausible case
that the right claimed would not be readily containable by
reference to facts about the mind that are matters of difficult
judgment, or by gatekeepers who are subject to temptation, noble or
not.
Respondents propose an answer to all this, the answer of state
regulation with teeth. Legislation proposed in several States, for
example, would authorize physician-assisted suicide but require two
qualified physicians to confirm the patient's diagnosis, prognosis,
and competence; and would mandate that the patient make repeated
requests witnessed by at least two others over a specified
timespan; and would impose reporting requirements and criminal
penalties for various acts of coercion. See App. to Brief for State
Legislators as
Amici Curiae la-2a.
But at least at this moment there are reasons for caution in
predicting the effectiveness of the teeth proposed. Respondents'
proposals, as it turns out, sound much like the guidelines now in
place in the Netherlands, the only place where experience with
physician-assisted suicide and euthanasia has yielded empirical
evidence about how such regulations might affect actual practice.
Dutch physicians must engage in consultation before proceeding, and
must decide whether the patient's decision is voluntary, well
considered, and stable, whether the request to die is enduring and
made more than once, and whether the patient's future will
involve
17 Again, the same can be said about life support and shortening
life to kill pain, but the calculus may be viewed as different in
these instances, as noted just above.
786
SOUTER, J., concurring in judgment
unacceptable suffering. See C. Gomez, Regulating Death 40-43
(1991). There is, however, a substantial dispute today about what
the Dutch experience shows. Some commentators marshall evidence
that the Dutch guidelines have in practice failed to protect
patients from involuntary euthanasia and have been violated with
impunity. See,
e. g., H. Hendin, Seduced By Death 75-84
(1997) (noting many cases in which decisions intended to end the
life of a fully competent patient were made without a request from
the patient and without consulting the patient); Keown, Euthanasia
in the Netherlands: Sliding Down the Slippery Slope?, in Euthanasia
Examined 261, 289 (J. Keown ed. 1995) (guidelines have "proved
signally ineffectual; non-voluntary euthanasia is now widely
practised and increasingly condoned in the Netherlands"); Gomez,
supra, at 104-113. This evidence is contested. See,
e. g., R. Epstein, Mortal Peril 322 (1997) ("Dutch
physicians are not euthanasia enthusiasts and they are slow to
practice it in individual cases"); R. Posner, Aging and Old Age
242, and n. 23 (1995) (noting fear of "doctors' rushing patients to
their death" in the Netherlands "has not been substantiated and
does not appear realistic"); Van der Wal, Van Eijk, Leenen, &
Spreeuwenberg, Euthanasia and Assisted Suicide, 2, Do Dutch Family
Doctors Act Prudently?, 9 Family Practice 135 (1992) (finding no
serious abuse in Dutch practice). The day may come when we can say
with some assurance which side is right, but for now it is the
substantiality of the factual disagreement, and the alternatives
for resolving it, that matter. They are, for me, dispositive of the
due process claim at this time.
I take it that the basic concept of judicial review with its
possible displacement of legislative judgment bars any finding that
a legislature has acted arbitrarily when the following conditions
are met: there is a serious factual controversy over the
feasibility of recognizing the claimed right without at the same
time making it impossible for the State to engage in an undoubtedly
legitimate exercise of power; facts
787
necessary to resolve the controversy are not readily
ascertainable through the judicial process; but they are more
readily subject to discovery through legislative factfinding and
experimentation. It is assumed in this case, and must be, that a
State's interest in protecting those unable to make responsible
decisions and those who make no decisions at all entitles the State
to bar aid to any but a knowing and responsible person intending
suicide, and to prohibit euthanasia. How, and how far, a State
should act in that interest are judgments for the State, but the
legitimacy of its action to deny a physician the option to aid any
but the knowing and responsible is beyond question.
The capacity of the State to protect the others if respondents
were to prevail is, however, subject to some genuine question,
underscored by the responsible disagreement over the basic facts of
the Dutch experience. This factual controversy is not open to a
judicial resolution with any substantial degree of assurance at
this time. It is not, of course, that any controversy about the
factual predicate of a due process claim disqualifies a court from
resolving it. Courts can recognize captiousness, and most factual
issues can be settled in a trial court. At this point, however, the
factual issue at the heart of this case does not appear to be one
of those. The principal enquiry at the moment is into the Dutch
experience, and I question whether an independent front-line
investigation into the facts of a foreign country's legal
administration can be soundly undertaken through American courtroom
litigation. While an extensive literature on any subject can raise
the hopes for judicial understanding, the literature on this
subject is only nascent. Since there is little experience directly
bearing on the issue, the most that can be said is that whichever
way the Court might rule today, events could overtake its
assumptions, as experimentation in some jurisdictions confirmed or
discredited the concerns about progression from assisted suicide to
euthanasia.
788
SOUTER, J., concurring in judgment
Legislatures, on the other hand, have superior opportunities to
obtain the facts necessary for a judgment about the present
controversy. Not only do they have more flexible mechanisms for
factfinding than the Judiciary, but their mechanisms include the
power to experiment, moving forward and pulling back as facts
emerge within their own jurisdictions. There is, indeed, good
reason to suppose that in the absence of a judgment for respondents
here, just such experimentation will be attempted in some of the
States. See,
e. g., Ore. Rev. Stat. § 127.800
et seq.
(Supp. 1996); App. to Brief for State Legislators as
Amici
Curiae 1a (listing proposed statutes).
I do not decide here what the significance might be of
legislative foot dragging in ascertaining the facts going to the
State's argument that the right in question could not be confined
as claimed. Sometimes a court may be bound to act regardless of the
institutional preferability of the political branches as forums for
addressing constitutional claims. See,
e. g., Bolling v.
Sharpe, 347 U.
S. 497 (1954). Now, it is enough to say that our examination of
legislative reasonableness should consider the fact that the
Legislature of the State of Washington is no more obviously at
fault than this Court is in being uncertain about what would happen
if respondents prevailed today. We therefore have a clear question
about which institution, a legislature or a court, is relatively
more competent to deal with an emerging issue as to which facts
currently unknown could be dispositive. The answer has to be, for
the reasons already stated, that the legislative process is to be
preferred. There is a closely related further reason as well.
One must bear in mind that the nature of the right claimed, if
recognized as one constitutionally required, would differ in no
essential way from other constitutional rights guaranteed by
enumeration or derived from some more definite textual source than
"due process." An unenumerated right should not therefore be
recognized, with the effect
789
of displacing the legislative ordering of things, without the
assurance that its recognition would prove as durable as the
recognition of those other rights differently derived. To recognize
a right of lesser promise would simply create a constitutional
regime too uncertain to bring with it the expectation of finality
that is one of this Court's central obligations in making
constitutional decisions. See
Casey, 505 U. S., at
864-869.
Legislatures, however, are not so constrained. The
experimentation that should be out of the question in
constitutional adjudication displacing legislative judgments is
entirely proper, as well as highly desirable, when the legislative
power addresses an emerging issue like assisted suicide. The Court
should accordingly stay its hand to allow reasonable legislative
consideration. While I do not decide for all time that respondents'
claim should not be recognized, I acknowledge the legislative
institutional competence as the better one to deal with that claim
at this time.
JUSTICE GINSBURG, concurring in the judgments.*
I concur in the Court's judgments in these cases substantially
for the reasons stated by JUSTICE O'CONNOR in her concurring
opinion,
ante, p. 736.
JUSTICE BREYER, concurring in the judgments.t
I believe that JUSTICE O'CONNOR'S views, which I share, have
greater legal significance than the Court's opinion suggests. I
join her separate opinion, except insofar as it joins the majority.
And I concur in the judgments. I shall briefly explain how I differ
from the Court.
I agree with the Court in
Vacco v.
Quill, post, at
800-809, that the articulated state interests justify the
distinction
*[This opinion applies also to No. 95-1858,
Vacco et al.
v.
Quill et al., post, p. 793.]
t[This opinion applies also to No. 95-1858,
Vacco et al.
v.
Quill et al., post, p. 793.]
790
BREYER, J., concurring in judgments
drawn between physician assisted suicide and withdrawal of life
support. I also agree with the Court that the critical question in
both of the cases before us is whether "the 'liberty' specially
protected by the Due Process Clause includes a right" of the sort
that the respondents assert.
Washington v.
Glucksberg,
ante, at 723. I do not agree, however, with the Court's
formulation of that claimed "liberty" interest. The Court describes
it as a "right to commit suicide with another's assistance."
Ante, at 724. But I would not reject the respondents' claim
without considering a different formulation, for which our legal
tradition may provide greater support. That formulation would use
words roughly like a "right to die with dignity." But irrespective
of the exact words used, at its core would lie personal control
over the manner of death, professional medical assistance, and the
avoidance of unnecessary and severe physical
suffering-combined.
As JUSTICE SOUTER points out,
ante, at 762-765 (opinion
concurring in judgment), Justice Harlan's dissenting opinion in
Poe v.
Ullman, 367 U. S. 497 (1961),
offers some support for such a claim. In that opinion, Justice
Harlan referred to the "liberty" that the Fourteenth Amendment
protects as including "a freedom from all substantial arbitrary
impositions and purposeless restraints" and also as recognizing
that
"certain interests require particularly careful
scrutiny of the state needs asserted to justify their abridgment."
Id., at 543. The "certain interests" to which Justice Harlan
referred may well be similar (perhaps identical) to the rights,
liberties, or interests that the Court today, as in the past,
regards as "fundamental."
Ante, at 720; see also
Planned
Parenthood of Southeastern Pa. v.
Casey, 505 U. S. 833 (1992);
Eisenstadt v.
Baird, 405 U. S. 438 (1972);
Griswold v.
Connecticut, 381 U. S. 479 (1965);
Rochin v.
California, 342 U. S. 165 (1952);
Skinner v.
Oklahoma ex rel. Williamson, 316 U. S. 535 (1942).
791
Justice Harlan concluded that marital privacy was such a
"special interest." He found in the Constitution a right of
"privacy of the home"-with the home, the bedroom, and "intimate
details of the marital relation" at its heart-by examining the
protection that the law had earlier provided for related, but not
identical, interests described by such words as "privacy," "home,"
and "family." 367 U. S., at 548, 552; cf.
Casey, supra, at
851. The respondents here essentially ask us to do the same. They
argue that one can find a "right to die with dignity" by examining
the protection the law has provided for related, but not identical,
interests relating to personal dignity, medical treatment, and
freedom from state-inflicted pain. See
Ingraham v.
Wright, 430 U.
S. 651 (1977); Cruzan v.
Director, Mo. Dept. of
Health, 497 U. S.
261 (1990); Casey, supra.
I do not believe, however, that this Court need or now should
decide whether or a not such a right is "fundamental." That is
because, in my view, the avoidance of severe physical pain
(connected with death) would have to constitute an essential part
of any successful claim and because, as JUSTICE O'CONNOR points
out, the laws before us do not
force a dying person to
undergo that kind of pain.
Ante, at 736-737 (concurring
opinion). Rather, the laws of New York and of Washington do not
prohibit doctors from providing patients with drugs sufficient to
control pain despite the risk that those drugs themselves will
kill. Cf. New York State Task Force on Life and the Law, When Death
Is Sought: Assisted Suicide and Euthanasia in the Medical Context
163, n. 29 (May 1994). And under these circumstances the laws of
New York and Washington would overcome any remaining significant
interests and would be justified, regardless.
Medical technology, we are repeatedly told, makes the
administration of pain-relieving drugs sufficient, except for a
very few individuals for whom the ineffectiveness of pain control
medicines can mean not pain, but the need for seda-
792
BREYER, J., concurring in judgments
tion which can end in a coma. Brief for National Hospice
Organization 8; Brief for American Medical Association (AMA) et al.
as
Amici Curiae 6; see also Byock, Consciously Walking the
Fine Line: Thoughts on a Hospice Response to Assisted Suicide and
Euthanasia, 9 J. Palliative Care 25, 26 (1993); New York State Task
Force, at 44, and n. 37. We are also told that there are many
instances in which patients do not receive the palliative care
that, in principle, is available,
id., at 43-47; Brief for
AMA as
Amici Curiae 6; Brief for Choice in Dying, Inc., as
Amici Curiae 20, but that is so for institutional reasons or
inadequacies or obstacles, which would seem possible to overcome,
and which do
not include
a prohibitive set of laws.
Ante, at 736-737 (O'CONNOR, J., concurring); see also 2 House
of Lords, Session 1993-1994 Report of Select Committee on Medical
Ethics 113 (1994) (indicating that the number of palliative care
centers in the United Kingdom, where physician assisted suicide is
illegal, significantly exceeds that in the Netherlands, where such
practices are legal).
This legal circumstance means that the state laws before us do
not infringe directly upon the (assumed) central interest (what I
have called the core of the interest in dying with dignity) as, by
way of contrast, the state anticontraceptive laws at issue in
Poe did interfere with the central interest there at
stake-by bringing the State's police powers to bear upon the
marital bedroom.
Were the legal circumstances different-for example, were state
law to prevent the provision of palliative care, including the
administration of drugs as needed to avoid pain at the end of
life-then the law's impact upon serious and otherwise unavoidable
physical pain (accompanying death) would be more directly at issue.
And as JUSTICE O'CONNOR suggests, the Court might have to revisit
its conclusions in these cases.
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