Physician-assisted Suicide: New Protocol for a Rightful Death

JurisdictionUnited States,Federal
CitationVol. 77
Publication year2021

77 Nebraska L. Rev. 229. Physician-Assisted Suicide: New Protocol for a Rightful Death


Christine Neylon O'Brien* Gerald A. Madek**

Physician-Assisted Suicide: New Protocol for a Rightful Death


I. Introduction ........................................... 230
II. Background of the "Right to Die" Cases ................. 231
A. The Ninth Circuit: Compassion in Dying v.
Washington .......................................... 232
B. The Second Circuit: Quill v. Vacco .................. 240
III. The United States Supreme Court ........................ 244
A. No Rightful Death ................................... 244
B. Comparing Opinions: Where the Justices Stand on
the Issues .......................................... 247
IV. Legislative Activity ................................... 260
A. Model Legislation ................................... 260
B. Oregon Death with Dignity Act (Measure 16): A
New Oregon Trail .................................... 265
1. Case History: Lee v. Oregon ...................... 267
C. Beyond Oregon to Other State Legislative Activity ... 272
V. Conclusion ............................................... 278



"And sweet is death who puts an end to pain."

Alfred Lord Tennyson,

Idylls of the King [1859-1885]

Lancelot and Elaine, l.1000

The United States Supreme Court granted review of two physician- assisted suicide (fn1) decisions from the Second and Ninth Circuits.(fn2) These cases involved state statutes that regulate and criminalize assisting in death.(fn3) The Second Circuit in Quill v. Vacco (fn4) found a Fourteenth Amendment equal protection violation in a New York statute because similarly situated individuals were classified in a manner that was not rationally related to a legitimate state interest.(fn5) This decision pertained to competent, terminally ill adults who would be legally prohibited from seeking active intervention in hastening death, e.g., by a prescription of a lethal dose of medication, as compared to similarly situated persons who would be permitted passive intervention, e.g., by the removal of life support.(fn6) In a unanimous decision, however, the United States Supreme Court reversed the Second Circuit ruling and held that New York's prohibition on assisted suicide does not violate the Equal Protection Clause of the Fourteenth Amendment.(fn7) The Ninth Circuit in Compassion in Dying v. Washington (fn8) recognized a liberty interest in the determination of the time and manner of death based upon the Fourteenth Amendment Substantive


Due Process Clause.(fn9) The United States Supreme Court reversed the Ninth Circuit, however, essentially allowing states to legislate and prohibit physician-assisted suicide.(fn10)

This Article discusses the decisions of the circuit courts in the above-mentioned cases and then analyzes the two United States Supreme Court opinions which provide room for speculation as to future decisions in this area. Thereafter, a proposed model state act to authorize and regulate physician-assisted suicide (fn11) is assessed along with a discussion of state legislative activity.


An age-old dilemma plaguing mankind is the need to balance the rights of the individual with the rights of the larger group, the state. Such a conflict of rights inevitably arises in any society, but in a society as committed to individual autonomy as the United States, the country whose consistent promise to generations of immigrants has been the right to control their own destinies, this conflict becomes central to preserving our way of life. We have attempted to negotiate between conflicting rights many times in judicial history. Such negotiations are rarely satisfactory to either side of the conflict since both the individual and the larger society obviously lose something in the negotiation. Never, however, in this long history of balancing rights, perhaps with the exception of the right to life and abortion clash, has there been a debate more difficult than the current debate over the right to die. This complicated conflict embodies the classic dilemma: on one side is the individual's right to control his most intimate decisions, such as the decision to avoid needless suffering and to die with dignity; on the other side is the right of the larger society to preserve the value of life.

The United States Constitution recognizes the inevitability of this conflict in areas like the right to die. In fact, the Due Process and Equal Protection Clauses in the Fourteenth Amendment are meant to make certain that when the state abrogates the rights of an individual


to preserve the rights of the group, it does so fairly, rationally and only when absolutely necessary. Two cases recently decided by federal circuit courts address the manner in which constitutional due process and equal protection enter into the negotiation between the right of a terminally ill adult to receive aid in dying and the right of the state to preserve the value of human life. These cases were recently heard and reversed by the United States Supreme Court. An analysis of the circuit court decisions in Compassion in Dying v. Washington (fn12) and Quill v. Vacco (fn13) reveals both the complexity and the unpredictability of using constitutional protections to negotiate a conflict of rights.

A. The Ninth Circuit: Compassion in Dying v. Washington

The first of these cases, Compassion in Dying v. Washington, was actually the first right to die case decided by a federal court of appeals. The plaintiffs included four physicians who treat terminally ill patients, three terminally ill patients and the non-profit Washington group, Compassion in Dying. Together, these plaintiffs challenged the constitutionality of a Washington statute which stated that "[a] person is guilty of promoting a suicide attempt when he knowingly causes or aids another person to attempt suicide."(fn14) The penalty for such action, a felony under this statute, was imprisonment for up to five years and a fine of up to $10,000. (fn15) The plaintiff physicians did not challenge the "knowingly causes" portion of this statute. Rather, they centered their suit on the "or aids" provision, claiming this provision deterred them from exercising their best professional judgment in providing aid to terminally ill, competent adults who wish to hasten their deaths. In essence, the plaintiffs charged that the "or aids" provision violated both the Due Process Clause and the Equal Protection Clause of the Fourteenth Amendment and thus was unconstitutional "both on its face and as applied to terminally ill, mentally competent adults who wish to hasten their own deaths with the help of medication prescribed by their doctors."(fn16)

When deciding this case, the district court held that the Washing-ton

statute violated both the Due Process and Equal Protection


Clauses.(fn17) The district court did not, however, declare this statute unconstitutional in its entirety, but only as applied to physician-assisted suicide for terminally ill, mentally competent adults. A three-judge panel for the Ninth Circuit heard the appeal and reversed the district court's decision. Finding neither a due process nor equal protection violation, this panel ruled that the Washington statute was not invalid either on its face or as applied.(fn18) Recognizing the "extraordinary importance" of this case, the Ninth Circuit decided to rehear Compassion in Dying en banc.(fn19) On rehearing, the Ninth Circuit affirmed the district court's holding that the "or aids" provision of the statute as applied to physicians prescribing life-ending medication at the request of terminally ill, mentally competent adults violated the Due Process Clause of the Fourteenth Amendment. Having found the statute unconstitutional in this context, the Ninth Circuit found it unnecessary to consider the constitutionality of this law in the context of the Equal Protection Clause.(fn20)

The disagreement among the courts underscores the abstract nature of the determinations being made and the difficulty of negotiating competing rights. While judicial tradition has established guidelines for resolving such statutory dilemmas, the application of these guidelines is inconsistent, because judicial discussion of such issues often involves as much personal value judgment as it does judicial precedent. A look at the Ninth Circuit's en banc decision in Compassion in Dying will illuminate this problem more completely.

When deciding whether a statute violates the Constitution's Due Process Clause, the courts, recognizing that this clause is meant to prevent capricious infringement of constitutionally-guaranteed individual liberties, must first decide whether the statute actually involves an individual liberty interest. In making this determination, the Ninth Circuit cites three pivotal United States Supreme Court decisions describing such a liberty interest. The first of these cases was offered in a dissenting opinion by Justice Harlan in Poe v. Ullman, (fn21) which postulated that the United States Constitution guarantees more than the rights specifically enumerated. Here, Justice Harlan claimed that "the full scope of the liberty guaranteed by the Due Process Clause . . . broadly speaking, includes a freedom from all substantial arbitrary impositions and purposeless restraints."(fn22) In the same


vein, Justice Brandeis, dissenting in Olmstead v. United States,(fn23) asserted that the Constitution guarantees the very broad "right to be let alone-the most comprehensive of rights and the right most valued by civilized men."(fn24) Finally, the Ninth Circuit, noting the similarities between right-to-die and abortion cases, cited the United States Supreme Court's decision in...

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