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PHYSICIAN-ASSISTED SUICIDE
LEGAL PATHFINDER
By: Angela R. Kubala
II. Primary
Sources
A. United States Constitution
B. Case
Law
C. Statutes
D. Administrative
Laws and Regulations
III. Secondary
Sources
A. Legal
Encyclopedias
B. Annotated
Law Reports
C. Legislative
Histories
D. Law
Journals
E. Articles
IV. Non-Legal Information Sources
A. Books
B. Articles
I. Introduction
Physician-assisted suicide is a social issue that has become a real concern in the
last decade and is the subject of intense national debate.
In June of 1997, the United States Supreme Court handed down two decisions which
both held that state bans on physician-assisted suicide did not violate either the Equal
Protection Clause or the Due Process Clause of the Fourteenth Amendment to the
Constitution and turned the matter back to the states for them decide whether to ban or
legalize assisted suicide. To this date,
Oregon is the only state that permits physician-assisted suicide (in limited
circumstances). Fifty states, including
the District of Columbia, recognize an individuals constitutional right to request the
withdrawal or withholding of medical treatment, even if doing so will result in the
person’s death through laws that authorize the use of advance directives (living
wills and medical powers of attorney) when a person is incompetent.
Assisted
Suicide
– assisted suicide refers to the act of providing the means to commit suicide knowing
that the recipient plans to use them to end his or her life. Physician-assisted suicide specifically refers to
a physician providing medications or other interventions with the understanding that a
patient plans to use them to end his or her own life.
II. Primary
Sources
A. United
States Constitution – U.S. Const. XIV § 1
The
court in applying equal protection and the due process clause of the 14th
Amendment to cases involving doctor-assisted suicide they have determined that individuals
have a fundamental liberty interest in refusing unwanted medical treatment, but do not
have a fundamental liberty interest in the availability of assistance in committing
suicide.
B. Case
Law
Supreme
Court Cases
Cruzan v. Director, Missouri Dep’t Health, 497 U.S. 261
(1990)
State
provisions which required that evidence of an incompetent individual’s desire to have
life-sustaining treatment withdrawn be proven by clear and convincing evidence violated
neither the due process clause nor the equal protection clause of the 14th
Amendment to the constitution. In upholding
state provisions, the court held that (1) it could have been inferred from the
court’s precedent’s that an individual had a constitutionally protected right to
refuse unwanted medical treatment, (2) the state had legitimate interests in protecting
and preserving human life, and (3) for purposes of determining the validity of state
provisions, under the due process clause of the 14th Amendment, the interests
of the state and of the individual must be balanced.
Planned
Parenthood v. Casey, 505 U.S. 833 (1992)
This
case concerned the validity of abortion-related provisions but cited Cruzan where the
Supreme Court expressed the view that a state’s interest in the protection of life
falls short of justifying plenary override of individual liberty claims.
Washington v.
Glucksberg, 521 U.S. 702 (1997)
Under
the due process clause of the 14th Amendment to the Constitution, individuals
do not have a fundamental liberty interest in the availability of assistance in committing
suicide, and state provisions that prohibit assisted suicide were valid if they were
rationally related to legitimate government interest.
This legitimate government interest include: (1) prohibiting intentional killing
and preserving human life, (2) preventing the serious public health problem of suicide,
(3) protecting the integrity and ethics of the medical profession, (4) protecting persons
in vulnerable groups from pressure to end their lives, and (5) avoiding a slide towards
voluntary or involuntary euthanasia.
Vacco v. Quill,
521 U.S. 793 (1997)
The
Supreme Court held that state criminal provisions which (1) prevented physicians from
assisting competent, terminally ill individuals in committing suicide, but (2) allowed
competent individuals to refuse life-sustaining medical treatment did not violate the
equal protection clause of the 14th Amendment to the Constitution. The Supreme Court applied the rational basis
review in determining that the provisions of a state assisted suicide law were rationally
related to the legitimate government interests discussed in Washington v. Glucksberg.
Federal Court of Appeals Cases
Compassion
in Dying v. State of Washington,
79 F.3d 790 (9th Cir. 1996)
The
Ninth Circuit Court ruled that the Washington State statute that prohibits assisted
suicide is unconstitutional because it implicates the liberty interest of the 14th
Amendment. The court specifically ruled that
the United States Constitution protects the right of competent, terminally ill patients to
receive, and the right of physicians to prescribe, medications for the purpose of
committing suicide. The case was reversed by
the Supreme Court’s decision in Washington v. Glucksberg.
Quill
v. Vacco,
80 F.3d 716 (2nd Cir. 1996)
The
Second Circuit Court held that the New York statute prohibiting assisted suicide was
unconstitutional as it applied to physicians because it violated the equal protection
clause of the 14th Amendment. They
specifically held that the United States Constitution protects the right of competent,
terminally ill patients to receive, and the right of physicians to prescribe medications
for the purpose of committing suicide. The
case was reversed by the Supreme Court’s Decision in Vacco v. Quill.
Lee
v. Oregon,
107 F.3d 1382 (9th Cir. 1997)
The
District Court held that Oregon’s Death with Dignity Act (Measure 16), violated the
Equal Protection Clause because the safeguards were insufficient to protect the rights of
terminally ill patients who may seek assistance in dying.
The court found that plaintiffs had no legal standing to challenge Measure 16
because they failed to show any threat of immediate harm and that their claim rested upon
a “chain of speculative
contingencies.” The Court did not decide
the constitutional merits of physician-assisted suicide.
District Court Cases
Krischer v. McIver, 697 So.2d 97 (1997)
Physician
and terminally ill patient brought suit seeking declaratory judgment that statute
prohibiting assisted suicide violated the Federal and State Constitutions. The court held that the statute did not violate
due process or equal protection clauses of the Federal Constitution and that the statute
did not violate the privacy clause of the State Constitution as asserted privacy interest
was outweighed by state’s compelling interests in preserving life, preventing
suicide, and maintaining integrity of medical profession.
C.
Statutes
Federal
Assisted
Suicide Funding Restoration Act of 1997, 42 USC § 14401 et. seq. (1999).
The
purpose of the statute is to continue current Federal policy by providing explicitly that
Federal funds may not be used to pay for items and services (including assistance) for the
purpose of which is to cause or assist in causing) the suicide, euthanasia, or mercy
killing of any individual.
(History: April 30, 1997, P.L. 105-12, § 2, 111 Stat. 23)
**Current
Legislation
**Legal Drug Abuse
Prevention Act of 1999 - to amend the Controlled Substances Act to promote pain
management and palliative care without permitting assisted suicide and euthanasia, and for
other purposes.
Sponsor
of Bill: Henry J. Hyde – introduced on
June 17, 1999
Latest
action: passed the House on October 27, 1999
and referred to the Senate Committee on November 19, 1999
State
The following is a list of assisted suicide laws by state:
Legalized under state statute: Oregon
Oregon Death with Dignity Act –
permits competent adults suffering from a terminal illness to request and receive
medication from their physician to end their lives. The
statute does provide a number of procedural safeguards to ensure that the request is
voluntary, the patient is competent, and the person is expected to die within six months
Criminalized
under state common law: Alabama, Idaho, Maryland, Massachusetts, Michigan,
Nevada, Ohio, South Carolina, Vermont, and West Virginia
No
law prohibiting physician-assisted suicide, and have abolished common law criminal
language: North Carolina, Utah, and Wyoming
Criminalized
under state statute: Alaska, Arizona, Arkansas, California, Colorado,
Connecticut, Delaware, Florida, Georgia, Hawaii, Illinois, Indiana, Iowa, Kansas,
Kentucky, Louisiana, Maine, Minnesota, Mississippi, Missouri, Montana, Nebraska, New
Hampshire, New Jersey, New Mexico, New York, North Dakota, Oklahoma, Pennsylvania, Rhode
Island, South Dakota, Tennessee, Texas,
Virginia, Washington, Wisconsin, District of Columbia
Fifty
states including the District of Columbia do have laws authorizing the use of some type of
advance directive (living wills, medical powers of attorney) and states have established
procedural requirements that must be met before withholding life-sustaining treatment.
D.
Administrative
Laws and Regulations
45
C.F.R. 1643 – restricts legal services corporation from assisting, supporting, or
funding for assisted suicide, euthanasia, or mercy killing activities.
III. Secondary
Sources
A.
Legal
Encyclopedias
American
Jurisprudence 2d
16A Am Jur 2d Constitutional Law § 438
16B Am Jur 2d Constitutional Law § 899
22 Am Jur 2d Death § 582
40 Am Jur 2d Homicide § 105
40A Am Jur 2d Homicide §§ 619-625
Corpus
Juris Secundum
18 C.J.S. Homicide § 103
26 C.J.S. Suicide § 4
5 C.J.S. Const. Law § 1247
B.
Annotated Law
Reports
40
ALR4th 702 – criminal liability for death of another as result of accused attempt to
kill self or assist another’s suicide.
47
ALR4th 18 – homicide: physician’s withdrawal of life supports from comatose
patient.
49
ALR4th 812 – living wills: validity, construction, and effect.
138
L.Ed. 2d 1143 – references to the constitution, encyclopedias, digests and indexes,
electronic search query, cases, and related annotations.
C.
West
Key Headnotes
Physicians
and Surgeons 299
Constitutional
Law 92
Suicide 368
D. Law
Journal Articles
John
A. Brennan, A State Based Right to Physician
Assisted Suicide, 79 B.U.L. Rev. 231 (1999).
Reviews
the development of the federal right-to-die doctrine and assesses the limited ability of
the United States Constitution to protect life-terminating decisions. The article also analyzes potential state based
mechanisms that may guarantee a right to physician-assisted suicide, whether
physician-assisted suicide will follow the path of other claims that have been rejected by
the Supreme Court, and discusses the constitutional and legislative limitations on state
based right to physician-assisted suicide.
Patel,
Rena, Physician-Assisted Suicide: Is it Time?,
35 Cal.W.L Rev. 333 (1999).
She
discuss' the safeguards incorporated in legislation on physician-assisted suicide and the
current law currently in place. She discusses
the moral, ethical, and medical considerations associated with physician-assisted suicide.
Palmer, Larry
I., Institutional Analysis and Physicians Rights
after Vacco v. Quill, 7 Cornell J.L. and Pub. Pol’y 415 (1998).
Illustrates
that the problem of physician-assisted suicide requires an analysis of law and medicine as
tow social institutions. Demonstrates that
interpretations of federal drug laws and Medicare and Medicaid regulations have a role to
play in the physician-assisted suicide debate. Also,
suggests that the physician-assisted suicide scheme authorized by Oregon voters is not a
model for legislatures in other states because voter initiatives and legislative
enactments represent different kinds of institutional processes.
Bradford,
Jennifer. Vacco v. Quill and Washington v.
Glucksberg: Thou Shalt Not Kill, Unless Your State Permits Physician-Assisted Suicide, 26
Pepp. L. Rev. 121 (1998).
Examines the
Court’s decisions in Vacco and Glucksberg and discuss their implications on a
terminally ill patient’s right-to-die and the history of the Court’s expansion
of constitutional rights and its interpretations of the right-to-die. The article also analyzes the two decisions
judicial, legislative, and social impact and looks to the future of physician-assisted
suicide in light of the two decisions.
Patterson,
Gina D., The Supreme Court Passes the Torch on Physician Assisted Suicide: Washington v.
Glucksberg and Vacco v. Quill, 35 Hous. L. Rev. 851 (1998).
Analysis of
the Vacco and Glucksberg decisions and there concurring opinions and examines the two
cases and critiques the stringent substantive due process test the majority used to
determine whether a fundamental liberty interest deserving of heightened scrutiny under
the Due Process Clause of the 14th Amendment existed
IV. Non-Legal
Information Sources
A.
Articles
McInerney,
Fran. “Requested Death: A New Social Movement.” Social
Science Medicine 50 (January 2000): 137.
The paper
addresses the chronology and current developments on the right-to-die issue. It argues that issues such as euthanasia and
physician-assisted suicide can be seen as forming part of an international social
movement.
Knickerbocker,
Brad. “Doctor-Aided Suicide: Shifting Politics.”
Christian Science Monitor (September 28, 1999): 1.
This
article focuses on the debate of physician-assisted suicide in all branches of the
government and talks specifically with regard to Congress passing the Pain Relief
Promotion Act and the current status of Oregon’s Death with Dignity Act.
Kaldjian,
Lauris C. “A Theological Response to
Physician-assisted Suicide.” Theology Today 56 (July 1999) 197-209.
Abeles,
Norman and Anat Barlev. “End of Life Decisions and Assisted Suicide.” Professional
Psychology: Research and Practice 30 (June 1, 1999) 229-334.
Symposium
on Physician-Assisted Suicide. Ethics: An International Journal of Social, Political,
and Legal Philosophy 109 (April 1999)
Thomson,
Judith J. “Physician-Assisted Suicide: Two Moral Arguments.” 497-518.
Brock,
Dan W. “A Critique of Three Objections to Physician-Assisted Suicide.” 519-547.
Weithman,
Paul J. “Of Assisted Suicide and “The Philosophers’ Brief.” 548-578.
Dworkin,
Gerald. “Sex, Suicide, and
Doctors.” 579-585.
Kamm,
F.M. “Physician-Assisted Suicide, the
Doctrine of Double Effect, and the Ground of Value.”
586-605.
Velleman,
David J. “A Right to Self Termination.” 606-628.
Chin,
Arthur E. et al. “Oregon’s Death with
Dignity Act: The First Year’s Experience.”
Provides
information on the Oregon’s Death with Dignity Act and gives a direct link to the pdf
version of the Annual Report from the Oregon Health Division Website.
Emanuel,
Ezekiel. “The Practice of Euthanasia and
physician-Assisted Suicide in the United States.”
The Journal of the American Medical
Association 280 (August 12, 1998) 507.
The
article is based on a test with an objective to determine whether the practices of
euthanasia and physician-assisted suicide are consistent with proposed safeguards and the
effect on physicians of having performed euthanasia or physician-assisted suicide.
Kaplan,
Kalman J. and Victor Wooddell. “An Expanded Typology of Suicide, Assisted Suicide,
and Euthanasia” Omega – The Journal of
Death and Dying 36 (May-June 1998) 219
The
article provides clinical examples of many categories of suicide (e.g. assisted suicide,
voluntary euthanasia, and involuntary euthanasia) and discusses their legal status and
implications.
B. Books
Britton,
Alison and Sheila McLean. The Case for Physician Assisted Suicide. San Francisco:
Pandora, 1997.
Clark,
Nina. The Politics of Physician Assisted
Suicide. New York: Garland, 1997.
Clement,
Mary and Derek Humphry. Freedom to Die:
People, Politics, and the Right-To-Die Movement. New York: St. Martins Press, 1998.
The
authors discuss the history behind physician-assisted suicide and euthanasia and how it
has affected the lives of patients. It
provides opposition of reform from religious associations, medical hierarchy, and the
president and government.
Emanuel,
Linda. Regulating How We Die: The Ethical,
Medical, and Legal Issues Surrounding Physician-Assisted Suicide. Cambridge: Harvard Univ. Press, 1998.
Aims
at clarifying and balancing the arguments concerning physician-assisted suicide and
euthanasia and directs its attention to the root issues in today’s society. The two sides are also debated with several
medical doctors putting to point and counterpoint the empirical, historical, and legal
perspectives of physician-assisted suicide.
Manning,
Michael. Euthanasia and Physician-Assisted
Suicide: Killing or Caring? New York: Paulist Press, 1998.
Moreno,
Johnahan. Arguing Euthanasia: The Controversy Over Mercy Killing, Assisted Suicide, and
the “Right To Die”. New York: Simon and Schuster, 1995.
Prado,
C.G. and S.J. Taylor. Assisted Suicide: Theory
and Practice in Elective Death Suicide. New
York: Humanity Books, 1999.
Provides
a comprehensive discussion of relevant moral and ethical concerns and framed the
discussion on several question, including When does assisted suicide make good sense? When should it be permitted? What is the nature of
patient consent?, and What professional ethics should govern its provision?
Smith,
Wesley. Forced Exit: the Slippery Slope
from Assisted Suicide to Legalized Murder. New York: Times Books, 1997.
Steinberg,
Maurice D. and Stuart J. Youngner. End-of-Life
Decisions: a Psychosocial Perspective. 1st ed. Washington, D.C.: American Psychiatric Press,
1998.
The
book, written by medical doctors, focuses on the issue of patient’s refusal of
life-sustaining treatment and the decisions making process from a legal, ethical, and
moral standpoint of the doctor and patient.
C. Organizations
Many organizations have views on the issue of physician-assisted suicide in which I
have listed a few below:
American Foundation for Suicide Prevention
The American Society of Law, Medicine, and Ethics
D. Websites
Guide
to Doctor-Assisted Suicide by Longwood College Library
Provides
in-depth information on physician assisted suicide: including journal and newspaper
articles, books, websites, audio programs, television programs, and court cases.