Brief of Ronald Dworkin, Thomas Nagel, Robert Nozick, John Rawls, Thomas Scanlon, and Judith Jarvis Thomson as Amici Curiae in Support of Respondents.

• Position: Physician-assisted suicide; U.S. Supreme Court - Transcript

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Interest of the Amici Curiae

Amici are six moral and political philosophers who differ on many issues of public morality and policy. Ihey are united, however, in their conviction that respect for fundamental principles of liberty and justice, as well as for the American constitutional tradition, requires that the decisions of the Courts of Appeals be affirmed.(1)

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Introduction and Summary of Argument

These cases do not invite or require the Court to make moral, ethical or religious judgments about how people should approach or confront their death or about when it is ethically appropriate to hasten one's own death or to ask others for help in doing so. On the contrary they ask the Court to recognize that individuals have a constitutionally protected interest in making those grave judgments for themselves, free from the imposition of any religious or philosophical orthodoxy by court or legislature. States have a constitutionally legitimate interest in protecting individuals from irrational, ill-informed, pressured or unstable decisions to hasten their own death. To that end, states may regulate and limit the assistance that doctors may give individuals who express a wish to die. But states may not deny people in the position of the patient-plaintiffs in these cases the opportunity to demonstrate, through whatever reasonable procedures the state might institute--even procedures that err on the side of caution--that their decision to die is indeed informed, stable, and fully free. Denying that opportunity to terminally-ill patients who are in agonizing pain or otherwise doomed to an existence they regard as intolerable could only be justified on the basis of a religious or ethical conviction about the value or meaning of life itself. Our Constitution forbids government to impose such convictions on its citizens.

Petitioners and the amici who support them offer two contradictory arguments. Some deny that the patient-plaintiffs have any constitutionally protected liberty interest in hastening their own deaths.(2) But that liberty interest flows directly from this Court's previous decisions. It flows [4] from the right of people to make their own decisions about matters "involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy." Planned Parenthood v. Casey, 505 U.S. 833, 851 (1992).

The Solicitor General, urging reversal in support of Petitioners, recognizes that the patient-plaintiffs do have a constitutional liberty interest at stake in these cases. See Brief for the United States as Amicus Curiae Supporting Petitioners at 12, Washington v. Vacco [hereinafter Brief for the United States] ("The term `liberty' in the Due Process Clause ... is broad enough to encompass an interest on the part of terminally ill, mentally competent adults in obtaining relief from the kind of suffering experienced by the plaintiffs in this case, which includes not only severe physical pain, but also the despair and distress that comes from physical deterioration and the inability to control basic bodily functions."); see also id. at 13 ("Cruzan ... supports the conclusion that a liberty interest is at stake in this case."). The Solicitor General nevertheless argues that Washington and New York properly ignored this profound interest when they required the patient-plaintiffs to live on in circumstances they found intolerable. He argues that a state may simply declare that it is unable to devise a regulatory scheme that would adequately protect patients whose desire to die might be ill-informed or unstable or foolish or not fully free, and that a state may therefore fall back on a blanket prohibition. This Court has never accepted that patently dangerous rationale for denying protection altogether to a conceded fundamental constitutional interest. It would be a serious mistake to do so now. If that rationale were accepted, an interest acknowledged to be constitutionally protected would be rendered empty.

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Argument

1. The Liberty Interest Asserted Here Is Protected by the Due Process Clause

   The Due Process Clause of the Fourteenth Amendment protects the liberty interest asserted by the patient-plaintiffs here.

   Certain decisions are momentous in their impact on the character of a person's life--decisions about religious faith, political and moral allegiance, marriage, procreation and death, for example. Such deeply personal decisions pose controversial questions about how and why human life has value. In a free society, individuals must be allowed to make those decisions for themselves, out of their own faith, conscience and convictions. This Court has insisted, in a variety of contexts and circumstances, that this great freedom is among those protected by the Due Process Clause as essential to a community of "ordered liberty." Palko v. Connecticut, 302 U.S. 319, 325 (1937). In its recent decision in Planned Parenthood v. Casey, 505 U.S. 833, 851 (1992), the Court offered a paradigmatic statement of that principle:

   matters[] involving the most intimate and personal choices a person may make in a lifetime, choices central to a person's dignity and autonomy, are central to the liberty protected by the Fourteenth Amendment. That declaration reflects an idea underlying many of our basic constitutional protections.(3) As the Court explained in [6] West Virginia State Board of Education v. Barnette, 319 U.S. 624, 642 (1943):

   If there is any fixed star in our constitutional constellation, it is that no official ... can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein. A person's interest in following his own convictions at the end of life is so central a part of the more general right to [7] make "intimate and personal choices" for himself that a failure to protect that particular interest would undermine the general right altogether. Death is, for each of us, among the most significant events of life. As the Chief Justice said in Cruzan v. Missouri, 497 U.S. 261, 281 (1990), "[t]he choice between life and death is a deeply personal decision of obvious and overwhelming finality." Most of us see death--whatever we think will follow it--as the final act of life's drama, and we want that last act to reflect our own convictions, those we have tried to live by, not the convictions of others forced on us in our most vulnerable moment.

   Different people, of different religious and ethical beliefs, embrace very different convictions about which way of dying confirms and which contradicts the value of their lives. Some fight against death with every weapon their doctors can devise. Others will do nothing to hasten death even if they pray it will come soon. Still others, including the patient-plaintiffs in these cases, want to end their lives when they think that living on, in the only way they can, would disfigure rather than enhance the lives they had created. Some people make the latter choice not just to escape pain. Even if it were possible to eliminate all pain for a dying patient--and frequently that is not possible--that would not end or even much alleviate the anguish some would feel at remaining alive, but intubated, helpless and often sedated near oblivion.

   None of these dramatically different attitudes about the meaning of death can be dismissed as irrational. None should be imposed, either by the pressure of doctors or relatives or by the fiat of government, on people who reject it. Just as it would be intolerable for government to dictate that doctors never be permitted to try to keep someone alive as long as possible, when that is what the patient wishes, so it is intolerable for government to dictate that doctors may never, under any circumstances, help someone to die who believes that further life means only degradation. The Constitution insists that people must be free to make these deeply personal decisions for themselves and must not be forced to end their lives in a way that appalls them, just because that is what some majority thinks proper.

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2. This Court's Decisions in Casey and Cruzan Compel Recognition of a Liberty Interest Here

   1. Casey Supports the Liberty Interest Asserted Here. In Casey, this Court, in holding that a State cannot constitutionally proscribe abortion in all cases, reiterated that the Constitution protects a sphere of autonomy in which individuals must be permitted to make certain decisions for themselves. The Court began its analysis by pointing out that "[a]t 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." 505 U.S. at 851. Choices flowing out of these conceptions, on matters "involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, are central to the liberty protected by the Fourteenth Amendment." Id. "Beliefs about these matters," the Court continued, "could not define the attributes of personhood were they formed under compulsion of the State." Id.

      In language pertinent to the liberty interest asserted here, the Court explained why decisions about abortion fall within this category of "personal and intimate" decisions. A decision whether or not to have an abortion, "originat[ing] within the zone...