|legal theory: philosophy|
Washington, et al., petitioners v. Harold Glucksberg et al.
117 S.Ct. 2258, 138 L.Ed.2d 772 (1997)
The question presented in this case is whether Washington's prohibition against "caus[ing]" or "aid[ing]" a suicide 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 Legislature outlawed "assisting another in the commission of self-murder." 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). * * *
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."
Id., at 1459. Relying primarily on Planned Parenthood v. Casey,
505 U. S. 833 (1992), and Cruzan v. Director, Missouri 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." * * *
We begin, as we do in all due-process cases, by examining our Nation's history, legal traditions, and practices. See, e.g., Casey, 505 U. S., at 849-850; Cruzan, 497 U. S., 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. 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, 497 U. S., at 280 ("[T]he States--indeed, all civilized nations--demonstrate their commitment to life by treating homicide as a serious crime. Moreover, the majority 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"). . . .
More specifically, for over 700 years, the Anglo-American common-law tradition has punished or otherwise disapproved of both suicide and assisting suicide. 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 . . . . 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." . . . .
For the most part, the early American colonies adopted the common-law approach. . . . .
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, 497 U. S., at 294 (Scalia, J., concurring). . . . [It is] clear, however, that the movement away from the common law's harsh sanctions did not represent an acceptance of suicide; rather, . . . 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). Nonetheless, although States moved away from Blackstone's treatment of suicide, courts continued to condemn it as a grave public wrong. . . .
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. . . . In this century, the Model Penal Code also prohibited "aiding" suicide, prompting many States to enact or revise their assisted-suicide bans. 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, . . . public concern and democratic action [have been] 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. . . . 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, 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 physician-assisted suicide. 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. 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. And just last year, Iowa and Rhode Island joined the overwhelming majority of States explicitly prohibiting assisted suicide. See Iowa Code Ann. §§707A.2, 707A.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).
Thus, the States are currently engaged in serious, thoughtful examinations of physician-assisted suicide and other similar issues. . . .
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.
The Due Process Clause guarantees more than fair process, and the "liberty" it protects includes more than the absence of physical restraint. . . . 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." . . . . 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, "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. Our Nation's history, legal traditions, and practices thus provide the crucial "guideposts for responsible decisionmaking," . . . that direct and restrain our exposition of the Due Process Clause. . . .
Justice Souter, relying on Justice Harlan's dissenting opinion in Poe v. Ullman, 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 1 (quoting Poe, 367 U. S. 497, 543 (1961) (Harlan, J., dissenting)). In our view, however, the development of this Court's substantive-due-process jurisprudence, described briefly above, supra, at 15, 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, . . . 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 substantive-due-process cases. For example, although Cruzan is often described as a "right to die" case, see 79 F. 3d, at 799; post, at 9 (Stevens, J., concurring in judgment) (Cruzan recognized "the more specific interest in making decisions about 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.
We now inquire whether this asserted right has any place in our Nation's traditions. Here, as discussed above, supra, at 4-15, 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. . . .
Respondents contend, however, that the liberty interest they assert is consistent with this Court's substantive-due-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 of 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, . . . 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 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 "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 5-13. . . .
Respondents also rely on Casey. There, the Court's opinion concluded that "the essential holding of Roe v. Wade should be retained and once again reaffirmed." Casey, 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 post-viability 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. * * *
[R]espondents 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 formed under compulsion of the State." Casey, 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. 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, . . . 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 assisted-suicide ban be rationally related to legitimate government interests. . . . This requirement is unquestionably met here. . . .
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 another"). This interest is symbolic and aspirational as well as practical . . . .
Respondents admit that "[t]he State has a real interest in preserving the lives of those who can still contribute to society and enjoy life." Brief for Respondents 35, n. 23. . . . 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 physical or mental condition, are under the full protection of the law. . . . 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, 497 U. S., 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. . . . The State has an interest in preventing suicide, and in studying, identifying, and treating its causes. . . . Those who attempt suicide--terminally ill or not--often suffer from depression or other mental disorders. . . . Research indicates, however, that many people who request physician-assisted suicide withdraw that request if their depression and pain are treated. . . . 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. . . . [T]he 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." . . .
Next, the State has an interest in protecting vulnerable groups--including the poor, the elderly, and disabled persons--from abuse, neglect, and mistakes. . . . We have recognized . . . 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 ("[A]n insidious bias against the handicapped--again coupled with a cost-saving mentality--makes them especially in need of Washington's statutory protection"). If physician-assisted suicide were permitted, many might resort to it to spare their families the substantial financial burden of end-of-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. . . .
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 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. Washington's ban on assisting suicide prevents such erosion.
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.
* * *
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 reversed, and the case is remanded for further proceedings consistent with this opinion.
It is so ordered.
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 this case 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" [("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"], 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. . . . The parties and amici agree that in these States a patient who is 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 27-30; post, at 11 (Stevens, J., concurring in judgments); post, at 33-39 (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 11, 12-13; see post, at 36-39 (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 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.
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 32. 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.
* * *
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. That holding, however, does not foreclose the possibility that some applications of the statute might well be invalid. * * *
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 18 (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 18.
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 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. 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." . . .
But . . . a decision upholding a general statutory
prohibition of assisted suicide does not mean that every possible application
of the statute would be valid. . . .
. . . We have recognized . . . that [the] 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, [but not all], 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.
When this Court reviewed [Nancy Cruzan's] 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. ["[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. . . .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." . . .] 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 death. In recognizing 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," 497 U. S., 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.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.
The state interests supporting a general rule banning the practice of physician-assisted suicide do not have the same force in all cases. First and foremost of these interests is the "`unqualified interest in the preservation of human life,'" . . . 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 25 (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 28. Rather, it gives 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 him--about 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 decently"). * * *
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 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.
In New 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. 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. Unlike the Court, however, see Vacco, ante, at 6-7, 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 terminating 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.
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 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 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,
Glucksberg, ante, at 24, 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.
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.
* * *
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,"
. . . 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. * * *
[W]e are dealing [here] with a claim to one of those rights sometimes described as rights of substantive due process and sometimes as unenumerated rights . . . 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, . . . the persistence of substantive due process in our cases points to the legitimacy of the modern justification for [it] found in Justice Harlan's dissent in Poe, . . . while the acknowledged failures of some of these cases point with caution to the difficulty raised by the present claim.
* * *
The dissent is important 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 acknowledgement 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, 505 U. S. 833, 849, 869-879 (1992) (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 application to individuals, nevertheless destroy the enjoyment of all three." Poe, 367 U. S., at 541. 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 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.
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. . . . 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). * * * 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, 481 U. S., 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. . . . 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 . . . ; that is, interests in liberty sufficiently important to be judged "fundamental." . . . 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 aspect of 'liberty' . . . [is] subjec[t] to 'strict scrutiny' ").
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 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 . . . ; 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. . . . 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. . . .
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. . . . When identifying and assessing the competing interests of liberty and authority, for example, 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. . . .
. . . 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. . . .
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 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. . . . 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 . . . . 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 shot-through by exceptions. * * *
The same insistence on exactitude lies behind
questions, in current terminology, about the proper level of generality at which
to analyze claims and counter-claims, 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. We may
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.
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. .
. . 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.
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. . . . 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, . . . 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. . . .
The principal significance of this history in the State of Washington, according to respondents, lies in its repudiation of the old tradition to the extent of eliminating the criminal suicide prohibitions. . . . Decriminalization does not, [according to them], imply the existence of a constitutional liberty 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). . . . 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 ("we 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. * * *
The analogies between the abortion cases and this one are several. Even though the State has a legitimate interest in discouraging abortion, see Casey, 505 U. S., 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. * * *
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 Ill 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 P. 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).
The argument supporting respondents' position thus progresses through three steps of increasing forcefulness. First, it emphasizes the decriminalization of suicide. . . . 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, . . . 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.
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, . . . 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.
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, . . . discouraging suicide even if knowing and voluntary, . . . and protecting terminally ill patients from involuntary suicide and euthanasia, both voluntary and nonvoluntary . . . .
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 involuntary euthanasia. 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 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 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. 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 were 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 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 well. 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 time span; and would impose reporting requirements and criminal penalties for various acts of coercion. . . .
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. . . . 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. . . . This evidence is contested. . . . 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 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. * * *
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 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.
I concur in the Court's judgments in these cases
substantially for the reasons stated by JUSTICE O'CONNOR in her concurring opinion.
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 that the articulated state interests justify the distinction 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. 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." 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 13-16 (Souter, J., concurring in the 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 15; 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).
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. . . .
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 comprise 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. 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. * * *
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.