Introduction: the Story of Tim

The story of Tim illustrates poignantly an underlying social issue at stake in the legal debate over physician-assisted suicide for terminally ill patients. Aside from the constitutional issues, a question of great social import must be asked: Is helping people to kill themselves an appropriate response to the life conditions which cause them to ask for such ‘help’?

Tim was a patient of Dr. Herbert Hendin, a leading expert on the subject of suicide.¹ Dr. Hendin is Professor of Psychiatry at the New York Medical College and Executive Director of the American Suicide Foundation in New York City. A young professional in his early thirties, Tim was referred to Dr. Hendin for psychiatric consultation after being diagnosed as having acute myelocytic leukemia. With treatment, Tim would have a twenty-five percent chance of survival; without treatment, he would certainly die within a few months.

Tim’s immediate response to this life crisis was a desperate desire for suicide. He also wanted help in carrying it out. He was preoccupied with concerns about being dependent and unwilling to tolerate the symptoms of his disease or the side effects of the treatment. Due to these preoccupations, Tim could not even consider how he felt about death and its meaning to him. However, with counseling, Tim was able to talk about the possibility or likelihood of his death. He was able to express what it meant to him in terms of separation and bodily disintegration. As a result, his desperate avoidance subsided.

Tim decided to undergo medical treatment and complained little about its unpleasant side effects. He spent the remaining months of his life connecting with his wife and parents in ways that were moving and meaningful to him. Two days before he died, he talked about what he would have missed without the time and opportunity for a loving parting.

Dr. Hendin observed that Tim’s expectation of painful circumstances surrounding his dying was not irrational. However, all his anxieties about death and dying were displaced onto amplifying them. Many patients and physicians displace anxieties about death onto the circumstances of dying C e.g., anxieties about pain, dependence, loss of dignity, as well as the unpleasant side effects resulting from medical treatment, or, for the physician, frustration of not being able to offer a sure cure.

Dr. Hendin noted that, if assisted suicide had been legal, such as under Oregon’s new law, Ballot Measure 16, Tim would probably have requested assisted suicide. Since he was mentally competent and not clinically depressed, he would surely have qualified and been accepted for such assistance. Consequently, he likely would have committed suicide in an unrecognized state of terror without the chance to die in the dignified way he did.

In presenting the legal case against statutorily permitting physician-assisted suicide for competent adults with terminal conditions, the primary focus of this article will be the constitutional and statutory issues based on American law. Yet the backdrop to the constitutional debate is made up of real people in real crises, such as Tim. What does society say to Tim if it grants and facilitates his desire to kill himself because he is terminally ill? Is helping Tim kill himself an appropriate way for society to deal with his crisis situation?

The New York State Task Force on Life and the Law (hereinafter ‘New York Task Force’) considered these questions and concluded, in an exhaustive study entitled When Death Is Sought: Assisted Suicide and Euthanasia in the Medical Context,² that

[w]hen a patient requests assisted suicide or euthanasia, a health care professional should explore the significance of the request, recognize the patient’s suffering, and seek to discover the factors leading to the request. These factors may include insufficient symptom control, clinical depression, inadequate social support, concern about burdening family or others, a sense of hopelessness, spiritual despair, loss of self-esteem, or fear of abandonment. These issues should be addressed in a process that involves both family members and health care professionals.

Any response to a request for assisted suicide or euthanasia is morally weighty. A ready agreement to the request could confirm a patient’s sense of despair and worthlessness.³

Dr. Richard Fenigsen⁴ echoes this concern about the message sent to vulnerable members of society by the approval of euthanasia, a concern which logically extends to assisted suicide:

Instead of the message a humane society sends to its members C “Everybody has the right to be around, we want to keep you with us, everyone of you” C the society that embraces euthanasia, even the ‘mildest’ and most ‘voluntary’ forms of it, tells people: “We wouldn’t mind getting rid of you.” This message reaches not only the elderly and the sick, but all the weak and dependent.⁵

In sum, requests for suicide are usually the result of a treatable condition. Agreeing with and assisting in a request for suicide is essentially an abandonment of a person desperately in need of help. Assistance in suicide is not an appropriate societal response to a request for suicide.

In addressing the constitutional issues surrounding physician-assisted suicide, two key legal issues arise: (1) does a constitutional right to suicide and assistance in suicide exist and (2) may a state extend protections against self harm and assistance in suicide to some of its citizens yet deprive other citizens of those protections? Particular emphasis will be placed on the rulings of two federal court rulings in the United States, Compassion in Dying v. Washington,⁶ which rejected a constitutional right to assisted suicide and Lee v. Oregon,⁷ which struck down the world’s first law legalizing assisted suicide adopted by the State of Oregon. These issues will be dealt with after an examination of the modern research on why persons seek suicide and assisted suicide.

Important Reasons Exist for Protecting Individuals from Self-harm and Assistance in Suicide

Reasons People Seek Suicide and Assisted Suicide.

Why do people seek suicide? The experts point to several treatable conditions which lead persons to seek suicide.

Depression

A major reason people seek suicide is because they are suffering from depressive illness or some other emotional or psychiatric problem which prevents them from making rational decisions. For the sake of brevity, these problems are generally referred to collectively in this article as ‘depression.’

Suicides rarely occur in the absence of major psycho- pathology. According to the findings from the large community based psychological autopsy studies, ninety-four percent or more of the subjects qualified for a psychiatric diagnosis at the time of the suicide (except for one study which arrived at the figure of eighty-eight percent).⁸ Major affective disorder and/or substance abuse disorders were implicated in fifty-seven percent to eighty-six percent of all suicides, with affective disorder the more common diagnosis.⁹

The same facts hold true for persons with a diagnosis of a terminal illness. “In one study of terminally ill patients, of those who expressed a wish to die, all met diagnostic criteria for major depression. Like other suicidal individuals, patients who desire suicide or an early death during a terminal illness are usually suffering from a treatable mental illness, most commonly depression.”¹⁰

A statistical link between terminal illness and an increased risk of depression and suicide also exists. “Individuals with serious chronic and terminal illness face an increased risk of suicide C some studies suggest that the risk for cancer patients is about twice that of the general population.”¹¹ A critical life stress can trigger emotional distress which may last for several weeks. In fact,

[m]ost crisis intervention models allow a minimum of five weeks for resolution of the acute emotional disorder attending major personal loss. Crisis counselors recognize that the judgment of a person who is legally competent and grossly oriented to reality and logic may nonetheless be emotionally distorted when reacting to overwhelming loss. Clients in crisis therapy are, therefore, cautioned not to make any major decisions within five weeks of a critical life stress.¹²

Because being diagnosed with a terminal illness is a critical life stress, the odds increase that anyone diagnosed with a terminal illness will suffer a period of such emotional incapacity. During this time, the individual is incapable of making rational life decisions, despite the fact of apparent competence.

The New York Task Force summed up the link between terminal illness and depression as follows:

Depression may coincide with other medial conditions for several reasons. First, the medical condition may biologically cause depression. Second, the condition may trigger depression in patients who are genetically predisposed to depression. Third, the presence of illness or disease can psychologically cause depression, as is often observed in patients with cancer. Finally, especially for cancer patients, some treatments or medications have side effects that cause depressive moods or symptoms.¹³

On the other hand,

[i]t is a myth . . . that severe clinical depression is a normal and expected component of terminal illness. Healthy individuals, including health care professionals, often believe that it is normal for terminally ill patients to experience major depression. They understand feelings of hopelessness as expected and rational given the patient’s condition and prognosis.¹⁴

In sum, few terminally ill patients wish to commit suicide unless they have depressive illness as well.¹⁵ In fact, only two to four percent of persons who commit suicide are terminally ill,¹⁶ indicating that most terminally ill persons do not want to kill themselves absent some other problem. “Among older persons, for whom chronic painful illnesses are not uncommon, only 0.5 percent of male deaths and 0.2 percent of female deaths are attributable to suicide.”¹⁷ Consequently, physical illness is not the only basis for a suicide decision when people commit suicide following physical illness.¹⁸ However, even though persons with a terminal disease are not normally prone to suicidal desires, such persons are at a demonstrably higher risk for suicide, most commonly as a result of depression.

However, if diagnosed, even severe depression may be alleviated by prompt treatment.¹⁹ Unfortunately, many persons take their lives during an acute depressive episode that would have responded well to modern treatments.²⁰

Despite the danger and pervasiveness of depression, it is seldom diagnosed. Many physicians are not competent to accurately assess depression,²¹ “especially in complex cases such as patients who are terminally ill. When an assessment is performed, the medical illness may obscure indicia of depression, rendering the diagnosis difficult.”²² Many physicians receive little, if any, training in recognizing and evaluating depression.²³ In fact,

[e]ven psychologists and psychiatrists who routinely treat and diagnose depression may have limited experience doing so for patients who are terminally or chronically ill. For those patients, clinicians must be able to distinguish realistic sadness and sense of loss that accompanies such illness from severe clinical depression or the psychiatric disorders that impair decision-making capacity. These disorders are prevalent in those patients who ultimately choose to commit or attempt suicide.²⁴

Moreover, even if depression is diagnosed, it is often undertreated.²⁵ As a result, terminally ill persons with undiagnosed and/or undertreated depression are at risk for seeking suicide.

Pain and Suffering

Unrelieved pain and suffering is another reason individuals seek suicide.²⁶ “[P]ain is closely linked to physical disability, depression, and feelings of hopelessness. Depression and anxiety in turn often augment the patient’s experience of pain.”²⁷ Many physicians are not well-trained in pain management and, as a result, permit their patients to endure pain which could be avoided.²⁸ “[T]he delivery of pain relief is grossly inadequate in clinical practice.”²⁹ When a primary-care physician is unable to control a patient’s pain, the patient needs to be referred to an interdisciplinary palliative care team for relief from the pain.³⁰ “Taken together, modern pain relief techniques can alleviate pain in all but extremely rare cases.”³¹

Similarly, when persons are experiencing psychological suffering, e.g., from social isolation or difficulty in coping with the limitations of a disability, they often feel suicidal.³² Such persons need to be referred for “continuing care or supportive care,” which seeks “relief from pain and other distressing symptoms, psychological and personal support for the patient and family, and assistance to help the patient maintain his or her daily activities, independence, and dignity.”³³

Substance Abuse

Another reason persons seek suicide is substance abuse. Dr. David Clark, an expert in suicidology, says that up to eighty-six percent of persons who commit suicide suffer from a major affective disorder and/or substance abuse.³⁴ Obviously, such persons need to be referred to an expert in treating the disorder and/or the substance abuse.

Psychological Pressure

Another reason for suicide is psychological pressure. Depression and the physical weakness resulting from physical debilitation make patients with terminal disease highly susceptible to undue influence and psychological pressure in the form of suggestions that their lives are not worth living.³⁵ According to sociologist Menno Bolt:

Suicidal persons are succumbing to what they experience as an overpowering and unrelenting coercion in their environment to cease living. This sense of coercion takes many familiar forms: fear, isolation, abuse, uselessness, and so on.³⁶

Professor Yale Kamisar questions what will be the effect of a regime of legal assisted suicide on persons subject to this psychological pressure:

Will these pressures intensify in a society that sanctions assisted suicide (and thereby suicide as well)? In a suicide-permissive society, will family members so inclined be more likely to alter or manipulate a sick, elderly person’s circumstances (for example, by providing shoddy or even hostile care) so that suicide becomes a reasonable, even an attractive choice?

In a climate in which suicide is the ‘rational’ thing to do, or at least a “reasonable option, will it become the unreasonable thing not to do? The noble thing to do? In a suicide-permissive society plagued by shortages of various kinds and a growing population of ‘nonproductive’ people, how likely is it that an old or ill person will be encouraged to spare both herself and her family the agony of a slow decline, even though she would not consider suicide on her own?”³⁷

Anti-Suicide Laws Promote Several Important Interests.

Clearly, the overwhelming majority of persons who express a suicidal wish do so because of a treatable problem and will cease to desire suicide if the problem is resolved. Therefore, the states further many important individual, as well as social, interests by enacting laws to prevent self-harm.

In Compassion in Dying v. Washington,³⁸ five separate interests were catalogued. The interests include:

Keeping Physicians as Healers

State laws prohibiting physician-assisted suicide promote an

interest in not having physicians in the role of killers of their patients . . . The physician’s constant search for ways to combat disease would be affected, if killing were as acceptable an option for the physician as curing . . . The physician’s commitment to curing is the medical profession’s commitment to medical progress.³⁹

Protecting Elderly and Infirm Persons

Across-the-board restrictions preserve an

interest in not subjecting the elderly and even the not-elderly but infirm to psychological pressure to consent to their own deaths . . . “Once the physician suggests suicide or euthanasia, some patients will feel they have few, if any alternatives, but to accept the recommendation.”⁴⁰

Protecting Poor and Minority Persons

Preventing suicide assistance promotes an

interest in protecting the poor and minorities from exploitation . . . [These populations would be especially at risk because they] are notoriously less provided for in the alleviation of pain [and because of] the desire to reduce the cost of public assistance by quickly terminating a prolonged illness.⁴¹

Protecting Persons With Disabilities

Protections from self-harm further an

interest in protecting all the handicapped from societal indifference and antipathy . . . The vulnerability of such persons to physician-assisted suicide is foreshadowed in the discriminatory way that a seriously-disabled person’s expression of a desire to die is interpreted. When the nondisabled say they want to die, they are labelled as suicidal; if they are disabled, it is treated as ‘natural’ or ‘reasonable.’⁴²

Preventing Netherlands-Style Abuse

Finally, such laws support an

interest in preventing abuse similar to what has occurred in the Netherlands where, since 1984, legal guidelines have tacitly allowed assisted suicide or euthanasia . . . [and] 8 percent of all deaths, and arguably more, come from direct measures taken to end the person’s life without a contemporaneous request to end it.⁴³

Types of Protective Laws.

To protect these important interests, most states have enacted a variety of laws to prevent self-harm. Such laws include:

Criminal Bans

Criminal bans against assisted suicide exist in many states.⁴⁴ In addition, assisted suicide is punishable under other laws in some states. For example, the Michigan Supreme Court recently held that Jack Kevorkian could be prosecuted under Michigan common law for the felony of assisting suicide even absent a specific assisted suicide statute.⁴⁵

Protective Intervention

Protective intervention laws allow individuals to act to stop a suicide without concern that they will be charged with battery or confinement.⁴⁶

Protective Civil Commitment

All states provide protective civil commitment of persons who attempted to harm themselves. The commitment in a mental care facility is for the purpose of getting expert professional assistance for the suicidal individuals until the desire to harm themselves passes.⁴⁷

Underlying Presumptions

Codified in the preceding statutes are two important presumptions, drawn from the facts discovered by modern suicidology. First, persons seeking to harm themselves are suffering from a treatable condition. If the condition is treated, the desire for self harm will cease. Second, persons seeking to harm themselves because they are suffering from a treatable condition need expert professional care.

Professional Discipline

Professional discipline of physicians is another protection provided by all states. A physician who violates professional ethics may be disciplined. Under the American Medical Association’s code of ethics, a physician is forbidden from involvement in assisted suicide.⁴⁸

Medical Malpractice

Medical malpractice also provides persons important protections against treatment below the appropriate standard of care which harms a patient. In most states, this protects individuals from harm as a result of physician involvement in suicide.

In preparing for our discussion of Lee v. Oregon which struck down Oregon‘s law, Ballot Measure 16, which legalized assisted suicide, it is appropriate to note at this point that Oregon provides all these presumptions and protections for its citizens. However, Ballot Measure 16 carves out an exception for one class of persons, those with a prognosis of less than six months to live. For that class, the presumptions are reversed: (1) a request for suicide is not presumed automatically to be a result of a treatable problem and (2) immediate expert professional assistance is not presumed to be required for such person. Of course, these presumptions fly in the face of the facts established by scientific studies in the field of suicidology. Given the statistically demonstrated connections between terminal illness, depression, and suicide, persons with a terminal disease are placed in danger by this loss of protections afforded other citizens. This will be discussed more fully below in the equal protection analysis.

First, however, we must briefly consider whether a constitutional right to assisted suicide exists. If so, then the practice must be permitted unless competing state interests in limiting suicide are truly compelling.

No Constitutional Right to Assisted Suicide Exists.

Several recent cases have been brought in the United States asserting a constitutional right to assisted suicide. Recent decisions by the federal Court of Appeals in San Francisco,⁴⁹ a federal district court in New York,⁵⁰ and the Michigan Supreme Court⁵¹ have agreed that there is no constitutionally protected right to assisted suicide. The primary constitutional theories advanced in each case include: (1) a fundamental constitutional right to assisted suicide is part of the ‘liberty’ guaranteed by the Due Process Clause of the United States Constitution; and (2) laws against assisted suicide violate the guarantee of equal protection of the laws found in the Equal Protection Clause of the Fourteenth Amendment of the U.S. Constitution.

Due Process ‘Liberty’ Provides No Right.

The Due Process Clause of the Fourteenth Amendment to the United States Constitution guarantees that no “State [may] deprive any person of life, liberty, or property, without due process of law.”⁵² The ‘liberty clause’ was originally intended to guarantee correct judicial procedures (‘procedural due process’) before a state could execute, incarcerate, or fine a citizen. However, the United States Supreme Court has given ‘liberty’ a ‘substantive’ meaning as well by finding that the due process guarantee forbids any state interference with certain substantive rights otherwise unmentioned in the Constitution’s text, no matter what judicial procedures are employed. Legal scholars refer to this approach as ‘substantive,’ as opposed to ‘procedural,’ due process.

A few examples demonstrate this approach. In the case of Griswold v. Connecticut,⁵³ the U.S. Supreme Court recognized a constitutional right for married couples to use contraceptive measures.⁵⁴ The Court believed that this interest was substantively protected under the Due Process Clause as a ‘right of privacy’.⁵⁵ In Roe v. Wade,⁵⁶ the Court expanded this substantive guarantee to include abortion,⁵⁷ but in Bowers v. Hardwick⁵⁸ it rejected a claim that the right of privacy encompassed homosexual sodomy.⁵⁹

Advocates of legalized assisted suicide assert that the courts should recognize a constitutional right to assisted suicide under the right of privacy or as a liberty guaranteed by the Due Process Clause, so that states could no longer forbid the practice. How does one evaluate such a claim? The U.S. Supreme Court has created a three-step analysis to determine whether the Constitution extends substantive due process protection to an individual interest.

The first step is to frame the private interest at stake in a concrete, fact-sensitive manner.⁶⁰ For example, in Bowers, a majority of the Supreme Court rejected efforts by advocates of a right to homosexual sodomy to broadly define the interest at stake. Thus, the Court rejected such characterizations of a right to homosexual sodomy as a person’s right to independently “define one’s identity”⁶¹ or the “right to differ as to things that touch the heart of the existing order”⁶² or the right “to make certain unusually important decisions that will affect his own, or his family’s, destiny.”⁶³ Rather, the majority narrowed its focus to “the claimed constitutional right of homosexuals to engage in acts of sodomy.”⁶⁴

When a right to assisted suicide is asserted, the interest at stake must necessarily be the ‘right to assisted suicide.’ Framing the interest more broadly, such as the ‘right to make important decisions’ or the ‘right to decide the course of one’s life’ is unhelpful.⁶⁵ At stake is a specific activity subject to a particular state policy. So the constitutional analysis must focus on the right of individuals to engage in that specific activity in relation to the right of the state to enforce its particular policy.

The next step determines whether the particular interest at stake is generally recognized as fundamental in the history and tradition of the people of the United States.⁶⁶ The inquiry here focuses on how the American people, acting through their laws, have treated the specific activity, and takes into objective account whether the activity is essential to the maintenance of our system of laws. If historically the asserted right has been consistently protected by American law, such as the right to marry or the right of parents to supervise the upbringing and education of their children, then it is likely that the court will find the activity to be a right to be protected by the constitution. If however the activity has been prohibited or circumscribed by law historically, it will not be found to be a protected right under the United States Constitution. This step ensures that constitutional rights will not be created merely at whim by judicial predilection.

American history and tradition have condemned assisted suicide as a crime with good reason,⁶⁷ belying any claim that assisted suicide has been a historically protected freedom. As a result, there can be no constitutional mandate recognizing a right to assisted suicide.

Finally, the substantive due process analysis asks whether, if a fundamental right exists, there are state interests which are so weighty, i.e., ‘compelling,’ as to allow a state to regulate even a fundamental constitutional right.⁶⁸ Thus, even if a fundamental liberty to choose assisted suicide existed, the next question would be whether any ‘compelling’ state interests override this liberty and justify its regulation. In the case of assisted suicide, compelling state interests in barring assisted suicide to protect vulnerable individuals and groups do exist.⁶⁹ Some of these compelling interests, as set forth by the United States Court of Appeals for the Ninth Circuit in Compassion in Dying v. Washington, are set out supra.⁷⁰

Equal Protection Provides No Right.

The United States courts have likewise rejected a right to assisted suicide asserted by advocates of legalized assisted suicide under the Equal Protection Clause. The Equal Protection Clause of the Fourteenth Amendment guarantees that no “State [shall] . . . deny to any person within its jurisdiction the equal protection of the laws.”⁷¹ Advocates of legalized assisted suicide have argued that persons requesting suicide assistance are similarly situated to persons refusing life-sustaining treatment. They assert that laws permitting assistance in the removal of life-sustaining treatment but barring suicide assistance denies equal protection to persons seeking to end life by active means.

Yet a bright line exists between allowing nature to take its course by refusing medical treatment, and taking active measures to terminate life. The former decision involves the intent to be relieved of the burdensome or futile treatment, while the latter involves the intent to terminate life. Refusing treatment vindicates an interest against bodily invasion while consenting to suicide assistance involves a bodily invasion. Refusal of medical treatment results in death from the underlying terminal condition, while assisted suicide introduces the fatal agent. Thus the state has legitimate reasons for distinguishing between the two actions in furtherance of its interest in preventing direct attacks on life and in protecting vulnerable persons.⁷²

Because there is no constitutional right to either suicide or assisted suicide in the United States, states may criminalize assisted suicide.⁷³ However, what if a state decides to allow assisted suicide for some of its citizens while offering others legal protections from self harm? Is that constitutionally permissible? That is the issue raised by the State of Oregon’s recently adopted Ballot Measure 16.

Oregon’s Authorization of Assisted Suicide for the Terminally Ill Violates Constitutional Rights.

Ballot Measure 16’s Statutory Scheme.

In the November 1994 election, voters in the State of Oregon⁷⁴ approved Ballot Measure 16, billed as providing for ‘voluntary’ assisted suicide for competent adults with a terminal disease.⁷⁵ The relevant parts of the statutory scheme include:

Class Definition

The class of persons who may choose assisted suicide is made up of those who are diagnosed as having a terminal disease, which is incurable and irreversible, with less than six months to live.⁷⁶

Lethal Prescription

A qualified person “may make a written request for medication for the purpose of ending his or her life. . . .”⁷⁷ Ballot Measure 16 authorizes state-licensed physicians to issue to persons who are terminally ill a lethal prescription without legal or disciplinary consequences to the physician C e.g., for erroneous diagnosis as to terminal illness or for writing a prescription which leaves a patient in a coma rather than dead C provided he or she acts in ‘good faith.’⁷⁸ The patient is then free to take the lethal prescription at any time in the future without supervision.

‘Safeguards’

Because Ballot Measure 16 by its own terms is intended only to apply to ‘voluntary’ requests for assistance in suicide,⁷⁹ and was so presented to the voters, the law has certain provisions to attempt to limit the law’s application to only those intended to be ‘benefited’ by it.⁸⁰ However, these are inadequate, as set forth below, both as to what they provide and fail to provide.

In evaluating the adequacy of Oregon’s provisions, it is noteworthy that advocates of legalized assisted suicide have often identified certain safeguards as essential, yet many such safeguards are missing from the Oregon scheme. These will be discussed in context. Ultimately, the lack of adequate safeguards proved to be of constitutional significance because the federal judge, in Lee v. Oregon, struck down the Oregon law because of this deficiency.

Most advocates of legalized assisted suicide insist that an examination by a mental health expert must be part of a legalized assisted suicide regime.⁸¹ Yet Ballot Measure 16 allows a primary-care physician to make the determination of whether the terminally ill patient is competent and without before the patient is to be referred for psychiatric evaluation. This is clearly inadequate with regard to the need to accurately diagnose depression or other mental and/or emotional disability. Most persons who commit suicide do so as a result of depression, most primary care physicians are not specially trained in diagnosing depression, and even mental health professionals find it difficult without special training and experience to diagnose depression in the terminally ill.⁸² Thus, there is a significant risk that the terminally ill patient’s depression will not be diagnosed and the patient may consent to assisted suicide because of a psychiatric illness rather than a rational decision.

In addition, Ballot Measure 16 provides that the attending primary care physician needs to refer a patient for expert psychiatric counseling only if, in his or her opinion, the “patient may be suffering from . . . depression causing impaired judgment.”⁸³ Importantly, under the law, a patient may be suffering from diagnosed depression and still obtain assisted suicide, provided a physician without training in psychology or psychiatry C not to mention the specialized expertise of a mental health care professional regularly treating terminally ill and geriatric patients⁸⁴ C determines that the depression is not causing impaired judgment. This will result in numerous requests for assisted suicide being granted when depression is undiagnosed or ignored (for not being deemed severe enough to impair judgment).

Thus, Ballot Measure 16 disregards the normal presumption that persons making a suicide request are doing so as a result of a mental or emotional disorder that requires professional intervention and treatment. Instead it creates a new presumption that a suicide request by a terminally ill person is not a result of depression. By removing from consideration one of the prime indicators of depression, this new presumption under Ballot Measure 16 will undoubtedly lead to more cases of missed and under-rated signs of depression and emotional incapacity. Moreover, Ballot Measure 16 removes all penalty for misdiagnosis or underdiagnosis by exempting physicians from any “civil or criminal liability or professional disciplinary action for participating in good faith compliance with this Act.”⁸⁵ By providing that one may act merely in ‘good faith,’ Ballot Measure 16 exacerbates the diagnosis problem. Now, without adequate training or any incentives to diagnose with due care, and guided by a legal presumption favoring assistance in suicide rather than treatment for suicidal ideation, primary care physicians are all that stand between the depressed terminally ill and the mistaken termination of their lives.

The only second opinion that is required to be obtained by the attending physician is that of another physician.⁸⁶ However, this provision is inadequate because a physician may refer the matter for ‘confirmation’ to a colleague who C for whatever reason C will not closely and independently scrutinize the referral. Thus, it does not provide for an independent medical examination by a physician not chosen by the attending physician for the purpose of confirming the diagnosis.

Ballot Measure 16 also lacks safeguards requiring independent oversight over the request for, and implementation of, an assisted suicide decision. It fails to mandate a probate court’s review,⁸⁷ for example, and does not require:

“[c]onsultation with a certified social worker and/or an independent living specialist currently employed by a center for independent living established under the federal Rehabilitation Act of 1973, as amended, in order to: a) fully explore social service and support services which might assist the individual in living in comfort and dignity, including the prognosis, expected outcome and health care implications of those alternatives and supports; and b) address and document barriers, including financial barriers, which prevent the individual from accessing identified community or other social service supports.”⁸⁸

Ballot Measure 16 likewise fails to require “[a] consultation with at least one other expert who could provide meaningful support and assistance to ameliorate the unbearable suffering of that individual. For persons with who have a terminal disease, this should include a consultation with [a] Hospice professional.”⁸⁹ Absent such safeguards, the patient cannot give a truly informed consent to receiving the lethal overdose⁹⁰ or voluntarily waive her rights to Oregon’s life-protective measures.

In order for the lethal overdose to be prescribed, the patient must make two oral and one written request for assisted suicide over a fifteen day period and, forty-eight hours later, the lethal overdose may be prescribed.⁹¹ However, Ballot Measure 16 does not adequately safeguard persons with a terminal illness because this time period is insufficient for resolution of the depression, given the high probability of undiagnosed depression or depression misdiagnosed as not sufficient to cause impaired judgment prior to the writing of the prescription. A patient with undiagnosed or misdiagnosed depression would likely not come out of the depression in such a short time, especially without professional counseling and, possibly, medication.

In addition, Ballot Measure 16 fails to adequately eliminate opportunities for undue influence.⁹² As a group, patients who have a terminal disease and persons with depression are highly vulnerable to suggestions that their lives are not worth living. The more depressed they are, the more vulnerable they become. In addition, these patients become increasingly weak and compliant because of the debilitating effect of disease on their body. This increases their vulnerability to undue influence and psychological pressures by family members and health care providers. However, Ballot Measure 16 does not adequately safeguard against such pressures because it does not provide for an independent investigation regarding the existence of undue influence before physicians comply with a request for assisted suicide.⁹³

Ballot Measure 16 lacks an adequate safeguard pertaining to family notice because the notice requirement is optional with the patient and, if done, is done by the person seeking suicide.⁹⁴ Ordinarily, family members are natural guardians against undue influence and psychological pressure to self harm.⁹⁵ However, the same debilitation and depression that leaves persons who have the disability of a terminal disease susceptible to undue influence may make them reluctant to notify their family of a decision to commit suicide. Ballot Measure 16 leaves the decision to the patient whether to notify family members. Thus, Ballot Measure 16 does not adequately safeguard voluntary decision-making because it does not provide that family members be notified by someone other than the patient.

Ballot Measure 16 also lacks an essential safeguard in cases involving suicidal individuals under guardianship. While a guardian of the person ought to receive notice of any decisions involving any ward, Ballot Measure 16 makes no provision for notifying a guardian. Persons who have the disability of a terminal disease will frequently have a guardian of their person appointed, athough they might retain sufficient decisional capacity to appear competent. Without knowledge, the guardian cannot act in the court-appointed role of defender of the patient.

Most importantly, Ballot Measure 16 lacks any safeguards applicable at the time the lethal overdose of drugs is actually taken by the patient. The patient is not required to take the lethal overdose of drugs at the time of prescription or under the supervision of a physician. The patient may take the lethal overdose days, weeks, or months afterwards. No safeguards for this period protect the patient from undue influence or psychological pressure, from depression (including that which clearly impairs judgment), or from involuntary administration of the life-ending measures at the hands of another. At the precise moment when the patient acts to take her own life with a legally prescribed overdose, no legally required supervision or other safeguard is applied to protect the patient.

‘Conscience Clause.’

Finally, Ballot Measure 16 purports to exempt those who object to participation in assisted suicide practices. However, by its terms, the protection is very narrow, applying only to physicians in the actual act of providing a lethal prescription. The exemption does not cover nursing home owners who oppose physician-assisted suicide in their facilities, nurses in hospitals who are required to care for persons committing assisted suicide, and other health care providers who are not actually involved in writing prescriptions for patients but who are required to participate in some way in assisted suicide against their consciences.⁹⁶

Violation of Equal Protection.

Does Oregon Ballot Measure 16 violate constitutional rights?⁹⁷ Specifically does Oregon Ballot Measure 16 violate the equal protection guarantees of the U.S. Constitution? The equal protection of the laws is guaranteed to all persons by the Fourteenth Amendment to the U.S. Constitution.⁹⁸ This requirement insures that all laws will apply equally to all similarly situated persons and is an essential protection against arbitrary and capricious government. As United States Supreme Court Justice Scalia put it:

What protects us . . . from being assessed a tax of 100% of our income above the subsistence level, from being forbidden to drive cars, or from being required to send our children to school for 10 hours a day . . . Our salvation is the Equal Protection Clause, which requires the democratic majority to accept for themselves . . . what they impose on you and me.⁹⁹

As noted above, Oregon has provided valuable benefits to all of its citizens C except for the terminally ill as a result of Ballot Measure 16. These benefits take the form of legal presumptions, protections, and criminal penalties necessary to preserve Oregonians from the risk of self harm, especially where the risk results from depression or other treatable problem. Ballot Measure 16 creates an exception to these laws thereby denying to terminally ill persons legal protections against suicide and self-harm that are afforded to all other Oregonians. Thus, the law creates two classes of citizens in Oregon, terminally ill patients, whose suicides are legally facilitated, and all other citizens, who are prohibited from receiving assistance in suicide. Under equal protection analysis, the question is whether treating these two groups of people differently under the law is constitutional.

Where government defines a class and provides members of the class with less legal rights than those enjoyed by the general populace, as Ballot Measure 16 does, “the classification drawn by the statute [must be] rationally related to a legitimate state interest.”¹⁰⁰ “The State may not rely on a classification whose relationship to an asserted goal is so attenuated as to render the distinction arbitrary or irrational.”¹⁰¹

Nor may a classification “rest on an irrational prejudice” against any group of persons.¹⁰² In Cleburne v. Cleburne Living Center, Inc., the United States Supreme Court unanimously held that discrimination on the basis of disability constitutes a denial of equal protection of the laws.¹⁰³ The Court struck down a zoning regulation barring persons with mental retardation from living in a neighborhood group home. The Court held that, while persons with mental retardation are not a suspect class so as to invoke heightened scrutiny, laws making classifications on the basis of the disability of mental retardation should be subject to rational basis scrutiny. This was sufficient to strike down zoning regulations impinging on liberties less weighty than the right to live.

As revealed in Cleburne, the analysis applied to Ballot Measure 16 must pay careful attention to the facts to determine whether it has a rational basis or instead is premised on irrational prejudice, and whether the classification of the terminally ill bears such an attenuated relationship to any asserted goals of the law, so-called legitimate ‘state interests,’ so as to make the classification arbitrary and irrational.

The Class Definition

The first question in an equal protection analysis is what classes have been created and whether they are ‘similarly situated.’

In most equal protection situations, the criteria used to differentiate the two classes is clear. For instance, most equal protection cases involve differing treatment based on sex or race. In those instances, it is readily ascertainable who is a member of each class. Under Ballot Measure 16, however, persons who are ‘competent adults’ and have a ‘terminal disease’ are in one class and all others are in the other. The criterion of ‘terminal disease,’ which defines those who are denied the protections of Oregon law from assisted suicide and self-harm, has severe definitional problems.

‘Terminal disease’ is defined by Ballot Measure 16 as “an incurable and irreversible disease . . . (which) will, within reasonable medical judgment, produce death within six (6) months.”¹⁰⁴ This definition, however, has two critical medical and legal flaws. First, the law does not explain whether death will occur in six month with treatment or without treatment. Many conditions are fatal if not treated. Does someone have a terminal disease if the condition is fatal in six months if not treated? This is obviously a critical distinction since many more people would be considered terminally ill and denied the protections of Oregon laws against assisted suicide and self-harm if they could die from an untreated disease in less than six months.

Second, it is a medical fact that a prognosis regarding life expectancy is notoriously unreliable. According to recent research, medical diagnoses are wrong twenty to forty percent of the time.¹⁰⁵ There is no accurate way to determine the length of a patient’s terminal disease in advance; it is merely an estimate.¹⁰⁶ In fact, as the Michigan Supreme Court recognized in State v. Kevorkian,¹⁰⁷ “[n]o clear definition of ‘terminal illness’ is medically or legally possible, since only in hindsight is it known with certainty when someone is going to die.”¹⁰⁸

Finally, the terminally ill are at least as vulnerable as, if not more vulnerable than, the rest of the populace to depression, improperly treated pain, and psychological pressure which can lead to suicidal requests. Moreover, their ranks include a disproportionate number of persons who are older, have a disability, or who are impoverished and so are more vulnerable to mistreatment due to discrimination or efforts to cut costs. Thus, both the terminally ill and the general public are susceptible to suicide as a result of depression and undue influence. As a result, the two groups are similarly situated and the state must provide a sufficient justification for the discrimination against those who are terminally ill.

Interests Asserted by the State

To justify this withdrawal of legal protection from assisted suicide for those with a terminal illness, the state must demonstrate that the withdrawal of protection is reasonably related to a legitimate state interest. Two state interests have been claimed by the State of Oregon. First, the State asserts an interest in protecting its citizens from pain and suffering.¹⁰⁹ Second, it asserts an interest in “allowing competent adult citizens to make critical decisions for themselves, even decisions that will lead to death”.¹¹⁰

Measure 16 Is Irrational

Is Ballot Measure 16 rationally related to either of these asserted interests? A close look at the reality of suicide demonstrates that Ballot Measure 16 violates equal protection for those who have a terminal disease.

As to an asserted interest in allowing citizens to avoid pain and suffering, many people without terminal conditions experience pain and suffering, while many people with terminal conditions do not. Besides, the Ballot Measure 16’s class definition omits any reference to pain and suffering as a criterion for differentiation. Therefore, Ballot Measure 16’s classification bears no rational relation to Oregon’s asserted interest in relieving pain and suffering.

Nor is Ballot Measure 16 rationally related to Oregon’s asserted interest in fostering competent decisionmaking. Clearly the terminally ill are not unique with regard to the state’s interest in promoting competent decisionmaking. Competent adults are on both sides of the line drawn by Ballot Measure 16, but only those on one side of the line are given the ‘choice’ of suicide.¹¹¹

More importantly, Ballot Measure 16 sweeps in terminally ill persons who are incompetent and unable to act voluntarily, even though Oregon claims to advance the interests of only the competent and voluntary. Its provisions fall woefully short of guaranteeing that only competent patients will commit suicide. In fact, because it permits depressed persons to choose suicide, Ballot Measure 16 impedes, rather than promotes, any interest in competent decision-making.

The federal judge, in Lee v. Oregon, found Ballot Measure 16 to violate the constitutional requirement of equal protection of the laws because “the procedures designed to differentiate between the competent and incompetent are not sufficient.”¹¹² In this regard, the court found the lack of an independent psychiatric examination to be a fatal flaw. After noting that “[i]t is undisputed that one of the factors that motivates suicide is depression” and that a “[t]reating physician may not be sufficiently qualified alone to evaluate mental impairments,” the court held that it is ‘,unable to conceive of a set of facts under which it would be rational to not require mental and social evaluations by appropriately trained professionals.”¹¹³ In addition, the court also found that the total lack of any supervision at the time the lethal overdose of drugs is actually taken does not ensure “that the decision to commit suicide is rationally and voluntarily made at the time of death.”¹¹⁴ As a result, Ballot Measure 16 “provides a means to commit suicide to people who may be competent, incompetent, unduly influenced, and/or abused at the time of death. . . . There is no distinction.”¹¹⁵

Based on these findings, the federal court concluded that

Measure 16 withholds from terminally ill citizens the same protections from suicide the majority enjoys. In the process, it has lowered standards and reduced protections to a degree that there is little assurance that only competent terminally ill persons will voluntarily die. The majority has not accepted this situation for themselves, and there is no rational basis for imposing it on the terminally ill.¹¹⁶

Conclusion

Assisting suicide is not an appropriate response to the life crises which cause a person to desire death. We should not tell people that we believe they are of such little worth that we agree with their often depression-influenced view that they are better off dead.

The Constitution does not require society to stand by while those seeking self-destruction pursue suicide or assisted suicide. Nor does it permit a state to protect only some of its citizens from threats that face all. The terminally ill are just as susceptible to depression-induced desires to die as the general population. Moreover, few terminally ill patients want to commit suicide, and those who express suicidal urges are likely influenced by depressive illness.¹¹⁷ As a result, people seeking suicide need life-affirming treatment, not assistance in death. The poor, the infirm, the elderly, those with a disability, minorities C all those who are particularly vulnerable in our society C deserve our help in living, not in dying.

James Bopp, Jr., J.D. – President

National Legal Center for the Medically Dependent & Disabled, Inc.; General Counsel National Right to Life Committee; Former Member President’s Committee on Mental Retardation; Editor Issues in Law & Medicine.

Richard E. Coleson - General Counsel

Indiana Citizens for Life

Notes

1 A substantial portion of this article is reprinted, with permission, from an article published by the authors entitled Bopp & Coleson, The Constitutional Case Against Physician-Assisted Suicide for Competent Adults With ‘Terminal Conditions,’ 11 Issues in Law & Medicine 239 (1995). It summarizes much of the relevant expert evidence presented in the extensive affidavits provided in support of motions for preliminary and permanent injunctions against Oregon Ballot Measure 16 to the United States District Court for the District of Oregon in the case of Lee v. Oregon, 891 F. Supp. 1429 (D. Or. 1994). The case challenged Oregon Ballot Measure 16 on constitutional and statutory grounds, as set forth infra, and Ballot Measure 16 has been permanently enjoined. The case is now on appeal to the United States Court of Appeals for the Ninth Circuit, where briefing will be completed by January 1996. Oral arguments are expected to occur in Spring 1996. The following material, much of it quoted (quotation marks omitted for ease in reading), concerning Tim and the views of Dr. Hendin are taken from the Affidavit of Dr. Herbert Hendin at 1-2, filed in support of the Motion for Preliminary Injunction in Lee.

2 New York State Task Force on Life and the Law, When Death Is Sought: Assisted Suicide and Euthanasia in the Medical Context (1994) [hereinafter New York Task Force]. The Task Force was convened in 1985 by Governor Mario Cuomo, who charged the 25-member body with developing recommendations for state public policy on a variety of issues.

3 Id. at 179.

4 Richard Fenigsen, M.D., Ph.D., is a retired cardiologist, professor of medicine, and author of four books and many articles on cardiology and medico-ethical issues, including articles on the Dutch experience with euthanasia. He is a citizen of the Netherlands and a member of the Dutch Physicians’ League, a medical association which opposes euthanasia.

5 Richard Fenigsen, A Case Against Dutch Euthanasia, 19 Hastings Center Rep., Jan.-Feb. 1989, Supp. at 22, 26.

6 49 F.3d 586 (9th Cir. l995).

7 891 F. Supp. 1429 (D. Or. 1995).

8 Affidavit of David C. Clark, Ph.D. at & 4, Lee v. Oregon, 891 F. Supp. 1429 (D. Or. 1995) (No. 94-6467-HO) (hereinafter Clark Affidavit). Cf. Edwin S. Schneidman, Rational Suicide and Psychiatric Disorders, 326 New Eng. J. Med. 889 (1992) (“It is undeniable that all persons C 100 percent C who commit suicide are perturbed and experiencing unbearable psychological pain.”).

9 Clark Affidavit, supra note 8, at & 4.

10 New York Task Force, supra note 2, at 13 (citing James H. Brown et al., Is It Normal for Terminally Ill Patients to Desire Death?, 143 Am. J. Psychiatry 208 (1986)).

11 New York Task Force, supra note 2, at 13.

12 Affidavit of Carol J. Gill, Ph.D. at & 18, Lee v. Oregon, 891 F. Supp. 1429 (D. Or. 1995) (No. 94-6467-HO) (hereinafter Gill Affidavit) (emphasis in original).

13 New York Task Force, supra note 2, at 15.

14 Id. at 16.

15 Clark Affidavit, supra note 8, at & 20-21; Gill Affidavit, supra note 12, at & 32.

16 David C. Clark, ‘Rational’ Suicide and People with Terminal Conditions or Disabilities, 8 Issues L. & Med. 147, 151 (1992).

17 Clark Affidavit, supra note 8, at & 19.

18 Id. at & 9.

19 Id. at & 6.

20 Id. (comment made concerning older persons).

21 Affidavit of Nancy J. Osgood, M.D. at & 8, Lee v. Oregon, 891 F. Supp. 1429 (D. Or. 1995) (No. 94-6467-HO) (citing James H. Brown et al., Is It Normal for Terminally-Ill Patients to Desire Death?, 143 Am. J. Psychiatry 208 (1986)); Gill Affidavit, supra note 12, at && 21-22.

22 New York Task Force, supra note 2, at 127.

23 Id.

24 Id. at 127-28.

25 Id. at 127.

26 Id. at 128. Permitting assisted suicide for persons experiencing pain would affect certain groups disproportionately to their representation in the general population. “A recent study found that patients treated at centers that serve predominantly minority patients were three times more likely than those treated elsewhere to receive inadequate pain treatment. Elderly individuals and women were also more likely than others to receive poor pain treatment.” Id. at 90 (citing Charles S. Cleland et al., Pain and Its Treatment in Outpatients with Metastatic Cancer, 330 New Eng. J. Med. 592 (1994)).

27 Id. at 128.

28 Id. at 35.

29 Id. at 43.

30 See id. at 37.

31 Id. at 40. “Palliative care experts believe that the number of patients with unavoidable and intolerable pain is very small. For these patients, sedation to a sleeplike state, while far from an ideal option, would prevent the patient from experiencing severe pain and suffering.” Id. As a result, the argument favoring assisted suicide because pain cannot be controlled for a small fraction of individuals

“shift[s] from relieving experienced suffering to ending a life no longer valued by its bearer or, let us be frank, by the onlookers.” “Neither for Love nor Money: Why Doctors Must Not Kill,” Public Interest 94 (1989): 33. Palliative care experts report that while sedation seems objectionable to many healthy individuals contemplating it in the abstract, most terminally ill patients and families find it acceptable. Nessa M. Coyle, R.N., Director, Supportive Care Program, Pain Service, Department of Neurology, Memorial Sloan-Kettering Cancer Center, oral communication, March 11, 1993.

Id. at 94 n.60.

32 See id. at 94-95. “As explained by one sociologist who studied suicide: ‘It is undeniable that all persons C 100 percent C who commit suicide are perturbed and experiencing unbearable psychological pain.’ “ Id. at 95 n.65 (quoting Edwin S. Schneidman, Rational Suicide and Psychiatric Disorders, 326 New Eng. J. Med. 889 (1992)).

33 Id. at 42.

34 Clark Affidavit, supra note 8, at & 4.

35 Affidavit of Gary E. Lee, M.D. at & 9, Lee v. Oregon, 891 F. Supp. 1429 (D. Or. 1995) (No. 94-6467-HO).

36 George Howe Colt, The Enigma of Suicide 342 (1991).

37 Yale Kamisar, Are Laws Against Assisted Suicide Unconstitutional?, 23 Hastings Center Rep., May-June, 1993, at 32, 39 (citation omitted) (emphasis in original).

38 49 F.3d 586 (9th Cir. 1995), reh’g en banc granted.

39 49 F.3d at 592.

40 Id. (quoting New York Task Force, supra note 2, at 122).

41 Id.

42 Id. at 592-93.

43 Id. at 593. The New York Task Force noted the existence of alternative numbers based on the raw data, as well as the results of further investigation:

An alternative measure used in the study suggests that nonvoluntary euthanasia occurred in 1.6% of all deaths. P.J. Van der Mass et al., ‘Euthanasia and Other Medical Decisions Concerning the End of Life,’ Lancet 338 (1991): 669-74 [sic]. A more recent study asked the physicians who performed nonvoluntary euthanasia for further information. Only 56% of nonvoluntary euthanasia cases involved patients who lacked decision-making capacity at the time of death; in the remaining 44% of cases, euthanasia was performed on competent (36%) or possible competent (8%) patients without an explicit request. L. Pijnenborg et al., ‘Life-Terminating Acts Without Explicit Request,’ Lancet 341 (1993): 1196-99 [sic].

New York Task Force, supra note 2, at 134 n.31.

The comment that there are ‘arguably more’ cases of involuntary euthanasia is also supported by the calculations of Doctor Richard Fenigsen, based on the actual data published by the Dutch governmentally-appointed Committee to Investigate the Medical Practice Concerning Euthanasia. See Richard Fenigsen, The Report of the Dutch Governmental Committee on Euthanasia, 7 Issues L. & Med. 339 (1991). The report of the Committee, commonly known as the Remmelink Report, gives the raw data on actions by physicians to end the lives of patients. Although there is no debate about the actual numbers, the definition of ‘euthanasia’ employed results in different conclusions about the number of euthanasia cases each year. The Committee concluded that only 2,300 (0.8% of all annual deaths) cases of euthanasia occur each year in the Netherlands by defining euthanasia to include only active termination of life upon request. Id. at 341. By contrast, Doctor Fenigsen derives 25,306 cases of euthanasia (19.4% of the total annual deaths) from the same data by using the definition of euthanasia of Joseph Fletcher, which “defin[es] euthanasia in four forms: (1) voluntary and direct, (2) voluntary but indirect, (3) direct but involuntary, and (4) both indirect and involuntary.” Id. at 340 n.3, 341. Included in his calculations were 8,100 patients who died from an overdose of morphine given with the intent to terminate life (which number the Commission listed under pain relief, not euthanasia). Of these 8,100 patients, 4,941 (61%) were given lethal doses of morphine with the intent of terminating life without the patient’s consent. Id. at 341.

44 At least twenty-six statutes barring assisted suicide exist. Alaska Stat. ' 11.41.120 (a)(2) (1989); Ariz. Rev. Stat. Ann. ' 13-1103(A)(3) (Supp. 1994); Ark. Code Ann. ' 5-10-104(a)(2) (Michie 1993); Cal. Penal Code ' 401 (West 1988); Col. Rev. Stat. Ann. ' 18-3-104(1)(b) (West Supp. 1994); Conn. Gen. Stat. Ann. '' 53a-56(a)(2) (1994); Del. Code Ann. tit. 11, ' 645 (Supp. 1994); Fla. Stat. Ann. ' 782.08 (West 1992); Ill. Ann. Stat. ch. 38, && 12-31 (Smith-Hurd Supp. 1992); Ind. Code Ann. ' 35-31-1-2 (Burns 1985); Kan. Stat. Ann. ' 21-3406 (1988); Me. Rev. Stat. Ann. tit. 17-A, ' 204 (West 1983); Minn. Stat. Ann. ' 609.215 (West 1987 & Supp. 1995); Minn. Stat. Ann. '' 147.091(W), 151.06(a)(7)(xii) (West Supp. 1993); Miss. Code Ann. ' 97-3-49 (1994); Mont. Code Ann. ' 45-5-105 (1989); Neb. Rev. Stat. ' 28-307 (1989); N.H. Rev. Stat. Ann. ' 630:4 (1986); N.J. Stat. Ann. ' 2C:11-6 (West 1982); N.M. Stat. Ann. ' 30-2-4 (Michie 1994); N.Y. Penal Law ' 120.30 (McKinney 1987); Okla. Stat. Ann. tit. 21, '' 813-18 (West 1982); Or. Rev. Stat. ' 163.125(1)(b) (1990); 18 Pa. Cons. Stat. Ann. ' 2505(b) (Purdon 1983); S.C. Code Ann. ' 16-3-70 (Law Co-op 1976); S.D. Codified Laws Ann. '' 22-16-37 (1988); Tex. Penal Code Ann. ' 22.08 (West 1994); Wis. Stat. Ann. ' 940.12 (West 1982). Cf. ' 210.5(2) Model Penal Code (Proposed Official Draft 1962).

45 People v. Kevorkian, 527 N.W. 2d 714 (Mich. 1994); cert. denied sub nom. Kevorkian v. Michigan, 115 S. Ct. 1795 (1995).

46 See, e.g., Oregon Revised Statutes ' 161.205, which provides that:

The use of physical force upon another person that would otherwise constitute an offense is justifiable and not criminal under any of the following circumstances: . . . (4) A person acting under a reasonable belief that another person is about to commit suicide or to inflict serious physical self-injury may use physical force upon that person to the extent that the person reasonably believes it necessary to thwart the result.

Or. Rev. Stat. Ann. ' 161.205 (1990 & Supp. 1994).

47 For example, Oregon Revised Statutes ' 426.005 defines a ‘mentally ill person’ as, inter alia, ‘a person who, because of a mental disorder is . . . [d]angerous to self . . . ‘ Or. Rev. Stat. Ann. ' 426.005(1)(d) (1987 & Supp. 1994). Oregon Revised Statutes ' 426.070 et seq. provide commitment proceedings for one who is a ‘mentally ill person,’ including emergency commitment proceedings.

48 Council on Ethical and Judicial Affairs, Code of Medical Ethics ' 2.211 (1994).

49 Compassion in Dying v. Washington, 49 F.3d 586 (9th Cir 1995), reh’g en banc granted.

50 Quill v. Koppell, 870 F. Supp. 78 (S.D.N.Y. 1994), appeal docketed, No. 95-7208 (2d Cir. Jan. 3, 1995).

51 People v. Kevorkian, 527 N.W.2d 714 (Mich. 1994); cert. denied sub nom. Kevorkian v. Michigan, 115 S. Ct. 1795 (1995).

52 U.S. Const. amend. XIV, ' 1.

53 381 U.S. 479 (1965).

54 Id. at 486.

55 Id. at 485-86.

56 410 U.S. 113 (1973).

57 Id. at 164.

58 478 U.S. 186 (1986).

59 Id. at 190-91.

60 See People v. Kevorkian, 527 N.W. 2d 714, 730 n.47 (Mich. 1994); cert. denied sub nom. Kevorkian v. Michigan, 115 S. Ct. 1795 (1995) (citing James Bopp, Jr. & Richard E. Coleson, Webster and the Future of Substantive Due Process, 28 Duq. L. Rev. 271, 281-91 (1990) (discussing the Supreme Court’s approach to framing proposed fundamental rights and testing them for constitutional warrant)).

61 Bowers, 478 U.S. at 205 (Blackmun, J., dissenting).

62 Id. at 211 (Blackmun, J., dissenting).

63 Id. at 217 (Stevens, J., dissenting).

64 Id. at 190-91 (majority opinion).

65 People v. Kevorkian, 527 N.W. 2d 714, 730 n.47 (Mich. 1994); cert. denied sub nom. Kevorkian v. Michigan, 115 S. Ct. 1795 (1995).

66 Id. at 730.

67 Id. at 731. See also supra note 44 (listing state statutes criminalizing assisted suicide).

68 See, e.g., Roe v. Wade, 410 U.S. 113, 155, 163 (deciding that at the point of fetal viability the state interest in protecting human life had risen to the point of being compelling, so that abortion could be proscribed except to save the life or health of the mother).

69 See generally New York Task Force, supra note 2. See also United Kingdom House of Lords Select Committee on Medical Ethics, Report of the Select Committee on Medical Ethics && 237, 262 (ordered to be printed Jan. 31, 1994) (“Th[e prohibition of intentional killing] is the cornerstone of law and of social relationships. It protects each one of us impartially, embodying the belief that all are equal.” Thus, reaching the conclusion that assisted suicide should not be legalized out of concern for vulnerable persons and groups).

70 Compassion in Dying v. Washington, 49 F.3d 586, 592-93 (9th Cir. 1995), reh’g en banc granted. See supra text accompanying notes 38-43.

71 U.S. Const. amend. XIV, ' 1.

72 See, e.g., Quill v. Koppell, 870 F. Supp. 78, 84-85 (S.D.N.Y. 1994), appeal docketed, No. 95-7208 (2d Cir. Jan. 3, 1995).

73 A careful evaluation of other theories proposed, shows that no constitutional right to assisted suicide exists under any theory. James Bopp, Jr., Is Assisted Suicide Constitutionally Protected?, 3 Issues L. & Med. 113 (1987).

74 Several states of the United States allow proposed laws to be placed on the ballot to be voted on by the people of the state. If the proposed law receives a majority vote, it becomes a law of the state, just as if it had been adopted by the state’s legislature.

75 Oregon Ballot Measure 16, ' 2.01 and Oregon Supreme Court approved Summary Page (April 15, 1994). As noted by the New York Task Force, “A recent study showed that lack of knowledge about pain relief correlated with the willingness to endorse assisted suicide.” New York Task Force, supra note 2, at 128 n.21 (citing R.K. Portenoy et al., Determinants of the Willingness to Endorse Assisted Suicide: A Survey of Physicians, Nurses, and Social Workers (1994) (unpublished manuscript). There is no evidence that Oregon voters were any more informed about modern palliative care than are voters elsewhere, i.e., they know little about what can now be done to relieve pain, which raises the question of whether their approval of assisted suicide was rationally related to scientific fact or was founded on illogical stereotypes.

76 Oregon Ballot Measure 16, '' 1.01(12), 2.01.

77 Id. at ' 2.01.

78 Id. at ' 4.01.

79 Id. at ' 2.01

80 Id. at ' 3.

81 New York Task Force, supra note 2, at 97 (“Proponents believe that legalizing assisted suicide . . . would not produce harmful consequences as a whole, and that potential dangers can be minimized by appropriate safeguards.” These include “[m]andated consultation with a licensed psychiatrist . . .”). See also Michigan Commission on Death and Dying, Report Offering Procedural Safeguards for Assisted Suicide 6-7 (April 14, 1994) (proposing minimum safeguards if assisted suicide is permitted and recommending that all persons seeking suicide be referred to a mental health care professional for evaluation) (hereinafter Proposed Michigan Procedural Safeguards).

82 New York Task Force, supra note 2, at 97 n.74 (“Some opponents . . . emphasize the difficulty of diagnosing depression among severely ill patients, and argue that mandated psychiatric consultation would fail to identify some cases of depression.”).

83 Oregon Ballot Measure 16, ' 3.03 (emphasis added).

84 See supra notes 21-24 and accompanying text.

85 Id. at ' 4.01(1).

86 Oregon Ballot Measure 16, ' 3.01 (3) and ' 3.02 (permitting the referring physician to select another physician, in his or her sole discretion, to confirm the diagnosis and determine if “the patient is capable and acting voluntarily”).

87 See Proposed Michigan Procedural Safeguards, supra note 81, at 6-7 (proposing probate court supervision to assure compliance).

88 Id. at 4-5.

89 Id. at 5.

90 Oregon Ballot Measure 16, ' 3.04.

91 Id. ' 3.08 (“No less than fifteen (15) days shall elapse between the patient’s initial oral request and the writing of a prescription under this Act. No less than 48 hours shall elapse between the patient’s written request and the writing of a prescription under this Act.”).

92 Oregon Ballot Measure 16, ' 4.02(2) provides that “[a] person who coerces or exerts undue influence on a patient to request medication for the purpose of ending the patient’s life, or to destroy a rescission of such a request, shall be guilty of a Class A felony.” This attempted safeguard is inadequate for two reasons: (1) as noted in the text, there is much psychological pressure which would be effective in encouraging a patient to request assistance in suicide (especially in the presence of depression) without rising to the legal standard of ‘undue influence,’ and (2) prosecuting someone for undue influence will do nothing to bring back the person who is dead because of undue influence. The time to eliminate undue influence and psychological pressure is before the death of the patient, which requires, at a minimum, a truly independent investigation.

93 Oregon Ballot Measure 16, ' 3.01(3), provides that a “consulting physician” chosen by the referring physician determine “that the patient is capable and acting voluntarily.” However, as noted infra, this closed referral system does not provide adequate independence in the investigation and requires only that the consulting physician “examine the patient and his or her relevant medical records.” Id. at ' 3.02. This in no way constitutes an adequate and independent investigation into the totality of the patient’s circumstances to discover if there is psychological pressure which may be eliminated.

94 Id. at ' 3.01 (5).

95 Of course, family members may also bring psychological pressure, but that problem is dealt with by the safeguard of having an independent investigation as to pressures to choose assisted suicide, as described supra. The problem dealt with here is that of the individual who feels the hopelessness associated with depression in part because he or she is cut off from the natural support system of family.

96 “No health care provider shall be under any duty, whether by contract, by statute or by any other legal requirement to participate in the provision to a qualified patient of medication to end his or her life . . . “ Id. at ' 4.01(4). However, “[i]f the patient . . . in a long term care facility . . . , one of the witnesses [to the written request for assisted suicide] shall be an individual designated by the facility . . . “ Id. at ' 2.02(4). There is no conscience exception which excuses a nursing home from providing a witness because witnessing a signature is not “provision . . . of medication.” However, many nursing home owners would strongly object to such complicity with assisted suicide and many will have religious objections. As a result, Measure 16 will be vulnerable to claims of religious liberty by nursing home owners and others under the Religious Freedom Restoration Act (RFRA), 42 U.S.C.A. '2000bb-1 (1994 & Supp.). The RFRA arguments are not developed here as being beyond the chosen scope of this article.

97 The plaintiffs in Lee v. Oregon, 891 F. Supp. 1429 (D. Or. 1995) (No. 94-6467-HO), raised several constitutional and statutory claims against Oregon Ballot Measure 16. No effort is made to discuss all of these herein. Rather, the focus will be upon the equal protection theory, which was the basis upon which the federal district court found the law unconstitutional.

98 U.S. Const. amend. XIV, ' 1.

99 Cruzan v. Director, 497 U.S. 261, 300 (1990) (Scalia, J., concurring).

100 Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 440 (1985).

101 Id. at 446. See also Zobel v. Williams, 457 U.S. 55, 61-63 (1982); United States Dept. of Agriculture v. Moreno, 413 U.S. 528, 535 (1973).

102 Cleburne, 473 U.S. at 450.

103 Id.

104 Oregon Ballot Measure 16, ' 1.01(12).

105 Affidavit of Richard Fenigsen, M.D., Ph.D. at && 5-6, Lee v. Oregon, 891 F. Supp. 1429 (D. Or. 1995) (No. 94-6467-HO) (hereinafter Fenigsen Affidavit).

106 Clark Affidavit, supra note 8, at & 28; Fenigsen Affidavit, supra note 105, at && 18-24; Affidavit of Herbert Hendin, M.D. at & 7, Lee, 891 F. Supp. 1429 (D. Or. 1995) (No. 94-6467-HO).

107 People v. Kevorkian, 527 N.W. 2d 714 (Mich. 1994); cert. denied sub nom. Kevorkian v. Michigan, 115 S. Ct. 1795 (1995).

108 Id. at 726 n.34.

109 Defendants’ Memorandum in Support of Motion for Summary Judgment at 38 n.15, Lee v. Oregon, 891 F. Supp. 1429 (D. Or. 1995) (No. 94-6467-HO).

110 Id. at 38.

111 This interest asserted by the State of Oregon on behalf of its citizens is an autonomy interest. Several observations are in order concerning assertions of autonomy. The percentage of persons whose autonomy interest is furthered by legalized assisted suicide is extremely small, perhaps non-existent according to experts who say that 100% of persons who commit suicide do so because they “are perturbed and experiencing unbearable psychological pain,” which raises serious questions about competence to make a serious life decision such as choosing assisted suicide. As stated by the New York Task Force:

[T]o the extent that laws prohibiting assisted suicide and euthanasia impose a burden, they do so only for individuals who make an informed, competent choice to have their lives artificially shortened, and who cannot do so without another person’s aid. As studies have confirmed, very few individuals fall into this group, particularly if appropriate pain relief and supportive care are provided.

New York Task Force, supra note 2, at 72 (citation omitted).

Elsewhere the New York Task Force again returns to the autonomy theme, explaining that:

The appeal to autonomy is also far more complex in practice. From the perspective of good health, many individuals may believe that they would opt for suicide or euthanasia rather than endure a vastly diminished quality of life. Yet, once patients are confronted by illness, continued life often become more precious; it is not so readily discarded. Given access to appropriate relief from pain and other debilitating symptoms, many of those who consider suicide during the course of a terminal illness abandon their desire for a quicker death in favor of a longer life made more tolerable with effective treatment.

Undoubtedly, the desire for ‘control’ at life’s end is widely shared and deeply felt. Yet, as a society, we have better ways to give people control and relief from suffering than by making it easier for patients to commit suicide . . .

Id. at 120-21.

Finally, autonomy has been a part of the great conversation of philosophers over the centuries. Is what one wishes at any one time an expression of the individual’s true wishes at another time or at deeper level? For example, in a first century letter to the church at Rome, Paul, the Christian apostle, wrote “[w]hat I want to do I do not do, but what I hate I do.” Romans 7:14 (New International Version). How does one advance autonomy in the face of such conflict? Immanuel “Kant argued that taking one’s own life was inconsistent with the notion of autonomy, properly understood. Autonomy, in Kant’s view, does not mean the freedom to do whatever one wants, but instead depends on the knowing subjugation of one’s desires and inclinations to one’s rational understanding of universally valid moral rules.” New York Task Force, supra note 2, at 81 (citation and footnote omitted). John Locke “argued that life, like liberty, represents an inalienable right, which cannot be taken from, or given away, by an individual.” Id. (citation omitted). In his view then, autonomy could not even include the termination of the self, without which there is no autonomy.

112 891 F. Supp. at 1434.

113 Id. at 1435-37.

114 Id. at 1438.

115 Id.

116 Id. at 1438.

117 Clark Affidavit, supra note 8, at & 20-21; Gill Affidavit, supra note 12, at & 32.