The Glucksberg & Quill Amicus Curiae Briefs: verbatim arguments opposing assisted suicide.

• Author: Coleson, Richard E.

Editors' Introduction

On January 8, 1997, the United States Supreme Court heard oral arguments in the assisted suicide cases of Vacco v. Quill(2) (challenging New York's assisted suicide ban) and Washington v. Glucksberg(3) (challenging Washington's law barring assisted suicide). Decisions on the cases from the Supreme Court are expected by early July, 1997.

This Verbatim provides a survey of many of the arguments made in friend of the court briefs supporting New York and Washington, providing key material verbatim. Forty-one amicus curiae briefs were filed in one or both of the cases in support of New York and Washington, i.e., in opposition to the notion that there is a constitutional right to suicide and assistance in committing suicide under substantive due process or equal protection theories (or any constitutional theory).(4) Nineteen briefs were filed favoring assisted suicide.(5)

Some of the briefs focused wholly or partially on making basic equal protection or substantive due process arguments, similar to those made by the states of New York and Washington in their briefs.(6) This Verbatim will not reiterate basic constitutional analyses, but will focus on unique or especially insightful contributions made by the amici curiae.

Amici Curiae

A review of the amici curiae opposing the declaration of a constitutional right to assisted suicide is itself enlightening. Opposition to a constitutional right to assisted suicide came from a diverse spectrum of entities. Appended to this article is a table listing the amici curiae and the major topics on which they focused in their briefs. Some are highlighted here.

Several briefs were filed by physical and mental health care provider organizations, much of the writing correcting misperceptions about numerous people dying in agony upon which the Second and Ninth Circuit opinions were based. The American Medical Association (AMA) (290,000 members), the American Nurses Association (180,000 members), and the American Psychiatric Association (42,000 members) filed a brief in Glucksberg, on which they were joined by a large number of organizations.(7) Briefs were also filed by the American Suicide Foundation, American Geriatrics Society, the American Hospital Association, the American Association of Homes and Services for the Aging,(8) the Catholic Health Association, the Catholic Medical Association, the Medical Society of New Jersey, the National Hospice Association, the National Association of Prolife Nurses,(9) and the Christian Medical & Dental Society.(10)

Several briefs were filed by governmental entities. The United States of America (by the U.S. Justice Department) filed two briefs, one in each of the cases. Three members of the U.S. Congress (Sen. Hatch, Rep. Hyde, and Rep. Canady) joined together on a brief. Members of the New York and Washington legislatures combined on a brief.(11) The states of Alabama, California, Colorado, Florida, Georgia, Illinois, Iowa, Louisiana, Maryland, Michigan, Mississippi, Montana, Nebraska, New Hampshire, New York, South Carolina, South Dakota, Tennessee, Virginia, and the territory of Puerto Rico joined in a brief. The State of Oregon filed its own brief. Richard Thompson, the Oakland County (Michigan) prosecuting attorney, filed a brief recounting his unsuccessful efforts to convict Jack Kevorkian and warning of the near impossibility of enforcing restrictions on any declared right to assisted suicide. E. Michael McCann, the District Attorney for Milwaukee County (Wisconsin) also filed a brief.

Forty-nine bioethicists joined on a brief arguing the rationality and broad social acceptance of a line between forgoing medical treatment and assisted suicide, countering the lower courts presupposition that assisted suicide must be permitted if withdrawal of treatment is permitted. George Annas, a prolific writer in the field of bioethics who is also an attorney, provided leadership in drafting the brief for the bioethics professors.(12)

Disability rights groups expressed grave concern about the risk a regime of assisted suicide would have on persons with disabilities. The National Legal Center for the Medically Dependent and Disabled, Inc., was joined on a brief by Disabilities Perspectives, the Ethics and Advocacy Task Force of the Nursing Home Action Group, the Michigan Handicappers Caucus and several individuals with terminal conditions or other disabilities.(13) The National Catholic Office for Persons with Disabilities filed a brief,(14) as did the National Spinal Cord Injury Association. Not Dead Yet and Americans Disabled for Attendant Programs Today (ADAPT) joined together to file a brief.

The plaintiffs in Lee v. Oregon(15)--the case in which a federal district court held that Oregon s Ballot Measure 16 (permitting physician-assisted suicide) violated the equal protection rights of terminally-ill persons by not providing them the same protections from self-harm and assistance in suicide provided other Oregonians--filed a brief setting forth much of the suicidology evidence from the record in that case. The evidence established, inter alia, that most persons who commit suicide do so because of a treatable condition, such as depression, and that when the condition is treated suicidal desires pass.

Several religious organizations (representing a major part of religiously observant persons in America) filed briefs. Of special concern to these groups was correcting the Ninth Circuit's self-serving and erroneous interpretations of religious views on suicide and assisted suicide. Agudath Israel filed a brief, as did the Institute for Public Affairs of the Union of Orthodox Jewish Congregations of America and the Rabbinical Council of America, providing Jewish perspectives. The Evangelical Lutheran Church in America filed a brief. Several religious organizations combined to file a brief in each of the cases before the Supreme Court: the United States Catholic Conference; state Catholic Conferences from New York, Washington, Oregon, and California; the Christian Life Commission of the Southern Baptist Convention; the National Association of Evangelicals; the Lutheran Church-Missouri Synod; Wisconsin Evangelical Lutheran Synod-Lutherans for Life, the Evangelical Covenant Church, and the American Muslim Council.

A number of activist public policy organizations also filed briefs. They include the American Center for Law & Justice, the American Life League, the Family Research Council, the International Anti-Euthanasia Task Force, the Legal Center for the Defense of Life, the National Right to Life Committee, the Rutherford Institute, and the Southern Center of Law & Ethics.

Arguments

The constitutional debate over assisted suicide focuses on two constitutional theories, substantive due process and equal protection. Both are based on the Fourteenth Amendment.(16)

In Glucksberg, the Ninth Circuit employed a substantive due process argument to hold that there is a right to assisted suicide.(17) In other words, the Ninth Circuit held that the Fourteenth Amendment's guarantee that no state may deprive a person of "liberty" without "due process" must be read to protect a right to suicide and assistance in committing suicide.(18) Because it had already decided the case on a substantive due process theory, the Ninth Circuit did not reach the equal protection argument also urged by those challenging Washington's statute criminalizing assisted suicide.(19) However, the court wrote approvingly of an equal protection argument.(20)

In Quill, the Second Circuit rejected the notion of a substantive due process right to assisted suicide.(21) Rather, the Second Circuit held that the "equal protection of the laws" guarantee of the Fourteenth Amendment requires states to permit assisted suicide where they permit withdrawal of life-saving treatment.(22)

The amici curiae briefs naturally focused on these two theories, generally selecting a unique aspect of the larger argument for full development.(23) The arguments dealt in general with the following topics: (1) health care background information, (2) proper framing of the issue to be tested as a constitutional right, (3) equal protection analysis (with arguments that equal protection both requires an assisted suicide right and forbids states to permit assisted suicide), (4) substantive due process (or "liberty") analysis, (5) history and tradition of suicide (an aspect of substantive due process analysis), (6) state interests advanced by prohibiting assisted suicide (relevant both as a "rational basis" for equal protection analysis and "compelling interests" in substantive due process analysis), (7) the experience of the Netherlands with euthanasia (a particular illustration of state interests), (8) the German experience with euthanasia (a particular illustration of state interests), (9) Jack Kevorkian's practice of assisted suicide (a particular illustration of state interests), and (10) the Americans with Disabilities Act (ADA). Arguments for the briefs on these subjects are set out verbatim below

Health Care Background

Why Patients Request Assisted Suicide(24)

[*5] The Ninth Circuit's decision rests in substantial part on the assumption that there are a "growing number of termi-[*6]nally ill patients who die protracted and painful deaths," Pet. App. A-53, and who, absent physician-assisted suicide, are condemned to face "unmitigated torture" before they die. Pet. App. A-106. Implicit in the court's holding are the views that those who request suicide do so to avoid excruciating pain, and that health care professionals can do nothing compassionate in response other than to assist in suicide. The court cited no evidence to support these views. In fact, available information demonstrates that these views are misguided.

1. There is no evidence that increasing numbers of patients are dying in severe pain. To the contrary, "[t]he potential for management of pain has recently improved, both...