Assisted suicide and equal protection: in defense of the distinction between killing and letting die.

• Author: Quinn, Kevin P.

To support the legalization of assisted suicide in the mid-1990s is chic. The Wall Street Journal' may protest too much with this complaint, but the rush to publish sensitive first-person accounts of assisted suicide in The New Yorker, The New York Times Magazine, and other mainstream periodicals is undeniable.(2) And the rush to support assisted suicide is not limited to popular journalism. In the course of a single month in 1996, two federal circuit courts, the first to rule on the matter, held that laws prohibiting physician assisted suicide in some circumstances violate the United States Constitution.(3) The Ninth Circuit, sitting en banc in Compassion in Dying v. Washington,(4) discovered a new constitutionally-protected liberty interest imbedded in the Due Process Clause--christening it "a due process liberty interest in controlling the time and manner of one's death,"(5) or "in short, a constitutionally recognized 'right to die"'(6)--and found that Washington State's law barring assisted suicide unconstitutionally curtailed the exercise of that liberty interest for certain terminally ill patients.(7) In Quill v. Vacco,(8) the Second Circuit declined to identify a new fundamental right,(9) but struck down New York's laws prohibiting assisted suicide on equal protection grounds, reasoning that New York did not treat similarly situated terminally ill patients alike.(10)

In holding that assisted suicide is a constitutionally protected act, both circuit courts refused to distinguish forgoing life-sustaining medical treatment from requesting life-ending medical intervention, such as physicians prescribing drugs to be self-administered by terminally ill persons who seek to hasten death. The Ninth Circuit could "see no ethical or constitutionally cognizable difference between a doctor's pulling the plug on a respirator and his prescribing drugs which will permit a terminally ill patient to end his own life."" For this court, "the death of the patient is the intended result as surely in one case as in the other."(12) More remarkably, the Second Circuit concluded that ending life by either forgoing treatment or administering drugs is "nothing more nor less than assisted suicide."(13)

With its magisterial language and recognition of a new fundamental liberty, Compassion in Dying II is the flashier ruling; yet Quill II, with its friendly rhetoric of equal protection offered the current Supreme Court a more restrained approach to the constitutional dimensions of the "right to die." Were the Court to extend constitutional protection to include assisted suicide, Quill II's equal protection argument required less stretching of the Constitution than any due process argument based on a newly discovered liberty interest. For this reason, my discussion will be confined to Quill II and, in particular, to its equal protection analysis.

Much of this article is a modest response to Judge Calabresi's invitation in his concurring opinion to "help us to distinguish between giving doctors the right to remove life support systems and right of the terminally ill to demand lethal drugs from the same doctors."(14) What Judge Calabresi really wants is a reasoned defense of the action/inaction distinction and "clear statements of possible interests that the state actually believes would be served by the distinction."(15) What he gets in this article is a defense of the killing/letting die distinction(16)--in order to topple the Second Circuit's equal protection reasoning--and a renewed plea that "[w]e cannot afford to routinize and institutionalize, let alone legalize, killing."(17)

Briefly stated, my claim is this: the intention of a terminally ill patient and her attending physician in hastening the patient's death matters, and thus should color our understanding of what treating terminally ill persons as equals really means. I will argue, contrary to the fashionable position in law and ethics,(18) that the distinction between intentionally killing oneself and intentionally letting oneself die is both coherent "as a matter of principle"(19) and morally relevant. This principled distinction then provides a benchmark for courts considering equal protection arguments to distinguish one patient seeking to commit suicide from another wishing to free herself of unwanted life-sustaining medical treatment, and to conclude, unlike Quill II, that these two individuals are not similarly situated for purposes of the Equal Protection Clause.

Quill and the Equal Protection Argument

In Quill v. Koppell,(20) three physicians challenged the constitutionality of two New York statutes penalizing assistance in suicide, alleging that each statute was invalid insofar as it prevented physicians from prescribing drugs to help competent terminally ill patients "hasten their deaths in a certain and humane manner."(21) The district court dismissed the action, rejecting both due process and equal protection challenges to the statutes. The court found that "plaintiffs make no attempt to argue that physician assisted suicide, even in the case of terminally ill patients, has any historic recognition as a legal right,"(22) so that no fundamental due process liberty interest was implicated, and held that equal protection was satisfied because New York identified a rational basis for its distinction between "allowing nature to take its course, even in the more severe situations, and intentionally using an artificial death-producing device."(23) The physicians appealed.

The Second Circuit reversed in part, holding that "physicians who are willing to do so may prescribe drugs to be self-administered by mentally competent patients who seek to end their lives during the final stages of a terminal illness."(24) Judge Roger Miner, writing for himself and Judge Milton Pollack, agreed with the district court that the physicians' due process claim failed because "no `right' to assisted suicide ever has been recognized in any state in the United States."(25) He judiciously "decline[d] the plaintiffs' invitation to identify a new fundamental right, in the absence of a clear direction from the Court whose precedents we are bound to follow."(26) But Judge Miner did claim to have found a way to declare the New York statutes unconstitutional--that laws forbidding assisted suicide deny equal protection.

The Fourteenth Amendment Equal Protection Clause(27) directs that state governments treat similarly-situated persons alike.(28) What it means to say that certain persons are "similarly situated"(29) is the cornerstone of equal protection review and Quill II is no exception. In reviewing the New York statutes,(30) Judge Miner conceded that only rational basis scrutiny was appropriate, but he concluded that even under that test New York failed.(31) His is a classic equal protection argument: the state is not treating "equally all competent persons who are in the final stages of fatal illnesses and wish to hasten their deaths,"(32) and cannot justify allowing some patients to forgo life-sustaining medical treatment, as privileged by the state and federal constitutions and state legislation,(33) while denying to others a different kind of help in dying. So insofar as the statutes in question prohibit physicians from prescribing death-producing drugs for those patients to self-administer, they "lack any rational basis and are violative of the Equal Protection Clause."(34)

It is important to notice that Judge Miner took care to say that "New York does not treat similarly circumstanced persons alike: those in the final stages of terminal illness who are on life-support systems are allowed to hasten their deaths by directing the removal of such systems; but those who are similarly situated, except for the previous attachment of life-sustaining equipment, are not allowed to hasten death by self-administering prescribed drugs."(35) This means that his argument for equal protection is based on a prior premise that all terminally ill patients seeking to hasten death with physician assistance are similarly situated. That premise is the focus of this article and, as I will argue, it is not especially secure. And if the premise falters, the basis for applying equal protection review in this case likewise crumbles.

How then does Judge Miner make his case for this crucial premise? He agrees with Justice Scalia, concurring in Cruzan v. Director, Missouri Department of Health,(36) that the action/inaction distinction is irrelevant in the context of forgoing life-sustaining medical treatment.(37) For Justice Scalia, "[s]tarving oneself to death is no different from putting a gun to one's temple as far as the common-law definition of suicide is concerned; the cause of death in both cases is the suicide's conscious decision to `pu[t] an end to his own existence.'"(38) In other words, forgoing life support (e.g., withdrawing artificial nutrition and hydration) is no different than suicide.(39) Resting upon that formidable proposition, Judge Miner rejects the distinction drawn by the district court between "allowing nature to take its course . . . and intentionally using an artificial death-producing device"(40) as the ground to distinguish forgoing medical treatment from assisted suicide. He reasons that, by forgoing life-sustaining treatment, a patient hastens her death "by means that are not natural in any sense."(41) Withdrawing nutrition, for instance, "brings on death by starvation,"(42) and this death "certainly cannot be . . . the natural result of the progression of the disease or condition from which the patient suffers."(43) With this terse account, Judge Miner is able to conclude that ending life by either forgoing treatment or administering prescription drugs is "nothing more nor less than assisted suicide."(44)

Equal Protection: A Closer Examination

This is a powerful argument,(45) and it represents a controversial doctrinal shift in traditional "right to die," jurisprudence...