Writing the Rules of Death: State Regulation of Physician-Assisted Suicide

Writing the Rules of Death: State Regulation of Physician- Assisted Suicide

Jack Schwartz

f the Supreme Court affirms either Compassion in Dy- ing u. State of Washington‘ or Quill v. Vacco,z state leg- I islatures will be presented with a new and unwelcome

task: regulating physician-assisted suicide (PAS). This article focuses on the states’ task of specific policy making in light of the due process reasoning in Compassion in Dying and the equal protection reasoning in Quill. Policy makers must try to predict whether a particular regulation would in practice achieve its intended objective.3 They must also try to predict whether the regulation would survive constitutional review if challenged. Finally, they must consider the extent to which they could, or should, maintain two different regulatory regimes: a more permissive one for decisions to forgo life-sustaining medical treatments, and a more restrictive one for decisions to obtain a prescription for a lethal dose of medication. This last issue will be especially challenging if the equal protection analysis in Quill prevails.

Summary of the cases In Compassion in Dying, the United States Court of Ap- peals for the Ninth Circuit held that a Washington statute prohibiting assisted suicide violated the substantive due process rights of those terminally ill patients who wished to hasten their deaths with medication prescribed by their physicians. Relying chiefly on Cruzan u. Director, Missouri Department of Health,4 a case involving a refusal of a life- sustaining procedure, and Planned Parenthood v. Casey,’ an abortion case, the Ninth Circuit held “that the Consti- tution encompasses a due process liberty interest in con- trolling the time and manner of one’s death-that there is, in short, a constitutionally recognized ‘right to die.”’6 The

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court, employing a balancing test said to have been drawn from Cruzan, found the state’s interests to be insufficient to outweigh the terminally ill individual’s interest in deciding whether to hasten death.’

Washington’s statutory prohibition on assisted suicide had the effect, in the court’s view, of eliminating suicide as an option for those terminally ill patients who are too frail to kill themselves, as healthy individuals can.s Hence, the Washington statute had the practical effect of prohibiting the exercise of this liberty interest, much as laws prohibiting doctors from performing abortions prevented women from having abortions before Roe v. Wade.y

At the same time, the Ninth Circuit made clear that state regulation of PAS would at least sometimes be constitutional: “State laws or regulations governing physician- assisted suicide are both necessary and desirable to ensure against errors and abuse, and to protect legitimate state interests.’”” Regulatory safeguards must be “appropriate, reasonable, and properly drawn....”” Although declining to endorse either the constitutionality or the practical wis- dom of any particular procedural safeguards, the court in dicta did note that

the state, might, for example, require: witnesses to ensure voluntariness; reasonable, though short, waiting periods to prevent rash decisions; second medical opinions to confirm a patient’s terminal status and also to confirm that the patient has been receiv- ing proper treatment, including adequate comfort care; psychological examinations to ensure that the patient is not suffering from momentary or treatable depression; [and] reporting procedures that will aid in the avoidance of abuse.I2

In the other PAS case, Quill v. Vacco, the United States

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Court of Appeals for the Second Circuit struck down New York‘s statutory prohibition of aiding a suicide, but on the basis of a different rationale. Disagreeing with the Ninth Circuit, the Second Circuit pointed out that a “right to assisted suicide finds no cognizable basis in the Constitu- tion’s language or design, even in the very limited cases of those competent persons who, in the final stages of terminal illness, seek the right to hasten death.”13 Nor is the right to assisted suicide properly to be considered an extra- textual “fundamental right,” for such a claimed right is neither implicit in the concept of ordered liberty nor deeply rooted in the nation’s traditions and history.l4

The Second Circuit then went on to hold the New York statutory prohibition of assisted suicide to be an unconstitutional violation of the equal protection clause of the Fourteenth Amendment. The court focused on two New York statutes (one on do-not-resuscitate orders, the other on health care proxies) that it characterized as legislative approval for the right of competent individuals to hasten death by instructing physicians to discontinue life-sustaining medical treatment.’I But in the court’s view, New York does not treat similarly situated people alike: those in the final stages of terminal illness who are on life-support systems are allowed to hasten their deaths by directing the removal of such systems; yet those in the final stages of terminal illness who are not on life-support systems are forbidden to hasten death by self-administering prescribed drugs.I6 The ending of life by a health care provider’s withdrawal of life support, in the court’s view, “is nothing more nor less than assisted suicide.’”’

This unequal treatment of terminally ill patients who would choose to hasten death but who are not on life- support systems is not supported by any legitimate state interest. As the court asked with more rhetorical heat than analytical light,

what business is it of the state to require the continuation of agony when the result is imminent and in- evitable? What concern prompts the state to inter- fere with a mentally competent patient’s “right to define [his] own concept of existence, of meaning, of the universe, and of the mystery of human life,” when the patient seeks to have drugs prescribed to end life during the final stages of a terminal illness?18

The court’s answer, of course, was, “None.”” Having struck down the New York prohibition, the

Second Circuit, like the Ninth Circuit, suggested that regulating PAS is constitutionally permissible. For example, the state may establish rules and procedures to ensure that the choice of suicide is made without coercion or psychological pressure.20 A state is also free, the court suggested, to define “terminal illness” with particularity, to “require the opinion of more than one physician, or [to] impose any

other obligation upon patients and physicians who collabo- rate in hastening death.yy21 These “other obligations” were described as follows:

For example, the state might take steps to assure the competence of prescribing physicians by imposing education and training qualifications, including pain management; it may require the establishment of lo- cal ethics committees as resources for physicians faced with questions relating to requests for lethal medica- tions; it could specify the information to be furnished to the patient to ascertain that the patient’s choice is a fully voluntary one; it might require consultations with other physicians for further diagnosis and prog- nosis in regard to the patient’s illness, for psychiatric evaluation, and for evaluation of pain control possibili- ties; it may provide a time delay between a request for lethal medication and the prescription in order to allow a time for reflection; and it may suggest some sort of notification to the patient’s family.22

In short, both circuits have invited state legislatures to regulate PAS and have sought to give guidance about permissible types of regulation. Because the statutes at issuc are prohibitory, not regulatory, the courts’ comments about regulation were dicta, and for that reason are to be viewed with caution. Ultimately, particular regulatory requirements must be consistent with the courts’ underlying constitutional analysis, not their passing comments.

Legislating PAS The Supreme Court’s affirmance of Compassion in Dying or Quill would move state legislatures down a road none has willingly chosen. Legislators would be called on to regulate an activity that, in most states, they have prohibited.2’

Theoretically, a state could simply refuse the courts’ invitation to regulate. If a state did nothing, however, the right would exist as a matter of constitutional law, but without regulation. Therefore, PAS would be governed just as any other treatment alternative: by the prevailing standard of care.24 More to the point, without a statute, none of the safeguards found in the typical advance directive law, for example, would apply to PAS. As a practical matter, then, state legislatures would find themselves under enormous pressure to regulate PAS.

Under Compassion in Dying’s substantive due process analysis, a regulation would be reviewed to determine whether it furthered a legitimate state interest without in- terfering unnecessarily with the individual’s right to determine the time and manner of death. This balancing test amounts to an “undue burden” assessment, now a familiar aspect of abortion jurisprudence after Planned Parenthood v. Ca~ey.~’ An undue burden would be found if “a state

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regulation has the purpose or effect of placing a substantial obstacle” in the path of a patient seeking PAS.26

Under Quill’s equal protection analysis, a regulation would be reviewed to determine whether it is rationally related to a legitimate state interest. Because the Second Circuit determined that all “mentally competent terminally- ill patients who seek to hasten death”27 form a single class, a regulation that applies to those requesting PAS but not to those requesting the withdrawal of treatment could be jus- tified only if a state can identify a legitimate interest appli- cable to the assisted-suicide patients but not to the treatment-withdrawal patients. A state’s difficulty in this re- spect is underscored by the Second Circuit’s insistence that the removal of a ventilator or feeding tube is “nothing more or less than assisted suicide.”ZX

State legislators loolung for guidance beyond passing comments in the cases have two models to consider: Or- egon’s voter-initiated Death with Dignity Act (Oregon Act)2y and a Model State Act to Authorize and Regulate Physi- cian-Assisted Suicide (Model Act),?” drafted by a group of law professors, physicians, philosophers, and economists. The Oregon Act allows competent, terminally ill patients to receive a prescription for lethal medication from their physicians. It contains detailed provisions about a patient’s oral and written requests for assisted suicide, the informed consent process, waiting periods, documentation, and other regulatory requirements. These requirements have been criticized as “SO laden with procedural safeguards” as to demand too much of terminally ill patients.31 Yet the Or- egon Act has also been criticized as seriously inadequate in its s a feg~ards .~~ Indeed, the regulatory protections in the Oregon Act were held by a federal district court to be insufficient to protect the terminally ill against suicide decisions made as a result of incompetence or coercion. This defect, the court held, violates the equal protection clause.’j

The other potential source of regulatory guidance, the Model Act, allows competent patients to receive the “medical means of suicide” from their physicians in the event of “terminal illness or an intractable and unbearable illness.” The Act contains provisions about informed consent, ex- pert consultations, documentation, and other regulatory requirements. These requirements, in the view of critics, are insufficient, “facilitiative [of assisted suicide] rather than protective

Because the Oregon Act and the Model Act may be sources for state legislators, I shall refer to provisions from each in the following discussion of specific regulatory topics. Moreover, provisions from the two acts offer a useful test of the validity of particular regulatory strategies under the constitutional reasoning of Compassion in Dying and Quill.

Identifying the right that must be honored A state legislature regulating PAS would first be obliged to

identify the scope of the right to be regulated in the statute. Presumably, a state would want to limit its regulatory scheme to the constitutional right itself, as delineated by the courts, rather than fashion an expanded statutory right.

Is the right limited to patients who are terminally ill? Passages in Compassion in Dying suggest “a liberty interest in determining the time and manner of one’s death” that extends beyond terminally ill patients.3s Indeed, it is difficult to see why terminal illness should mark the outer boundaries of an interest described in those The Model Act, unlike the Oregon Act, does not limit assisted suicide to terminally ill patients; instead, it applies to “terminal illness,” when death is expected within six months, and to “intractable and unbearable illness,” when a patient prefers death to continued sufferir~g.~’ The claim advanced by those challenging the Washington prohibition, however, and, correspondingly, the holding of the court, were limited to the terminally ill.

So, too, in Quill the claim and holding were limited to the terminally i 1 P The Second Circuit presumably would find a legitimate state interest in the preservation of life that is not “all but ended.”3’ Of course, Quill‘s rationale raises an underlying issue: If a patient’s refusal of continued ventilator support and consequent death through as- phyxiation “is nothing more or less than assisted suicide,” and if a patient who is not terminally ill is permitted by law to achieve assisted suicide by means of dscontinued ventilator support,“O how, as a matter of equal protection, can a patient who has the same ailment but who is not ventilator-dependent be denied assisted suicide by means of lethal medication?

The only tenable answer, unacknowledged by Quill, is that patients who refuse treatment are not simply deciding to hasten death, although that may be their underlying motive. They are primarily rejecting unwanted bodily invasion~.~’ Thus, patients who refuse treatment and patients who seek lethal medication are not in all relevant respects alike, even if their underlying disease is identical. State regulation that deals differently with the two groups is not a violation of equal protection if the difference is explicable in terms of the weightier individual right to refuse treatment. By respecting patients’ bodily integrity in all cases, not just cases of terminal illness, a state serves a legitimate interest that would permit differentiation of assisted suicide and, hence, allow the state to limit assisted suicide to terminally ill patients.

Defining terminal illness is a familiar problem in one sense: state advance directive laws generally contain a definition, often somewhat ambiguous, of terminal illness or terminal condition.42 Yet state legislatures that were con- tent to give physicians considerable room for prognostic discretion in applying laws about treatment refusal may resist a grant of similar discretion over assisted suicide.

How restrictive can a definition of terminal illness be?

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One conventional measure is a life expectancy of six months or less, which is the definition in the Oregon Act43 and in the federal regulation on hospice care payment under Medi- care.44 Some state legislatures that are especially hostile to assisted suicide may attempt a shorter durational definition-perhaps death predicted to occur within two or three weeks. Efforts like these would compel the federal courts to fashion their own definition of terminal illness, as liti- gants whose life expectancy exceeded the state’s durational limit argue that the state’s limit denies their constitutional rights as much as the across-the-board prohibitions struck down in Compassion in Dying and Quill. Because terminal illness, unlike pregnancy, has no precise dividing there is no basis for predicting the point at which the federal courts would characterize a durational definition as an undue burden.

Must the patient be competent? Both cases presented claims that the statutory prohibitions violated the rights of patients who would be competent at the time of the request for assistance in suicide, and the holdings were so

The Oregon Act47 and the Model Act4* likewise limit the right to patients who can competently evaluate alternatives before requesting a prescription for lethal medication. Both evidently assume that a patient competent at the time of the request will also be competent at the time of the later suicide. This assumption reflects a practical reality about suicide by means of prescribed medication: competency at the time of the act of suicide is not subject to scrutiny, because the patient has control of the lethal dose of medication and can take it at any time.49 A state more intent on requiring assessment of competency to the very end would (and constitutionally could) require the physician to dispense the lethal medication personally and remain with the patient while the medication is ingested.

The next wave of cases (assuming that these two survive) will no doubt advance the argument, familiar from the cases on forgoing life-sustaining procedures, that at least formerly competent individuals must be afforded the same right. Cases going back to In re QuinlanSo have held that an individual does not forfeit decisional authority over medical treatment merely because the individual is disabled, albeit another person necessarily exercises the authority, No appellate opinion distinguishes between a competent and an incompetent individual’s underlying right to refuse medical treatment.“ But for now, given the explicitly limited scope of Compassion in Dying and Quill, a state legislature may limit the availability of PAS to those terminally i l l patients who are competent at the time of the request.

Must the patient be suffering from irremediable physical pain? Although patients who were plaintiffs in the two cases asserted that they suffered from pain,’2 and in some passages the courts focused on dying patients in pain:3 neither court identified the presence of irremediable pain as a prerequisite to the existence of the right. Indeed, if the

terminally ill have a constitutional right to hasten death, as the Ninth Circuit held, it is difficult to see why that right disappears merely because analgesia is effective. A patient may be experiencing psychological distress more burdensome than physical pain, and a denial of suicide to a suffering patient is an undue burden, for the state surely has no interest in prolonging the patient’s ~uffering.’~

Under Quill’s approach, terminally ill patients may forgo life-sustaining treatment even if they are not experiencing pain; therefore, terminally ill patients for whom treatment refusal would not bring death may request lethal medication even if they are not experiencing pain. The state has no legitimate interest in prolonging the suffering of any patient in the Second Circuit’s unitary class.

Neither the Oregon Act nor the Model Act conditions eligibility for PAS on a showing that a patient is experiencing physical pain. Indeed, the drafters of the Model Act “agreed to allow anyone to be eligible whose illness is incurable and who subjectively feels that the accompanying suffering is worse than death.’’SS The Oregon Act has that effect, as long as the disease meets the Act’s definition of terminal disease.sh

A state may attempt a statutory demarcation between degrees of suffering, declaring some a sufficient basis for assisted suicide and others not. Yet the drafting difficulty of this task is formidable, for suffering by its very nature is wholly subjective. How can a state identify dividing lines within a phenomenon defined by an eminent physician as the “state of severe distress associated with events that threaten the intactness of the person”?57 For example, Janet Adkins, Dr. Jack Kevorluan’s first “patient,” undoubtedly suffered from the dread that Alzheimer’s disease would cause her to lose her independent functioning.’”

State legislatures blocked by the Constitution from using a comparatively observable phenomenon-physical pain-as a criterion, may attempt regulation by adjective: “intractable and unbearable” suffering, for example, as in the Model Act.5y In the end, however, only the patient can decide whether subjective criteria of this kind are met. Hence, they are more gesture than regulation.

Does the right extend only to assistance in suicide, or does it extend more broadly to various forms of aid-in-dying? The Ninth Circuit recognized “that it may be difficult to make a principled distinction between physician assisted suicide and the provision to terminally ill patients of other forms of life-ending medical assistance, such as the admin- istration of drugs by a physician.”6o Indeed, the court suggested that the “critical line ... [is that] between the voluntary and involuntary termination of an individual’s life .... We consider it less important who administers the medication than who determines whether the terminally person’s life shall end.”61

Nevertheless, the Ninth Circuit remitted for future cases the question whether a terminally ill patient who is unable

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to take prescribed medication has a constitutional right to have a lethal drug administered by a physician. “[Here] we decide only the issue before us-the constitutionality of prohibiting doctors from prescribing medication for use by terminally ill patients who wish to hasten their death.”h2 Likewise, in Quill, the Second Circuit limited its holding to self-administered lethal medication, pointing out that the plaintiffs in the case “do not argue for euthanasia at all but for assisted suicide for terminally-ill, mentally competent patients, who would self-administer the lethal drugs.”h3

The courts’ line-drawing will not hold. For example, it is doubtful whether a state could rationally distinguish between competent, terminally ill patients who are able to swallow lethal medication and competent, terminally ill patients who are physically unable to do so. Both proponents and opponents of PAS have argued that there is little principled distinction between patient-administered and physician-administered lethal drugs, at least in cases where the patient is physically unable to administer the Nevertheless, states that did not legalize PAS will not legalize euthanasia until the courts order them to do so. The states’ response to an affirmance of Compassion in Dying or Quill will be attempted regulation of PAS and continued prohibition of euthanasia, despite the illogic of the distinction.hs

Establishing safeguards and procedures As discussed, both the Second and Ninth Circuits differen- tiated between the prohibition of PAS for competent, terminally ill patients, which the courts found to be unconstitutional, and state regulation of the process leading up to a suicide, which the courts suggested would often be constitutionally permissible. Several important types of regulation are considered below.hh

Competence assessment. If a patient is not competent, then the choice of PAS would not be the kind of “personal choic[e] ... that is central to personal dignity and autonomy.”h7 As a leading bioethics text puts it, “the characteris- tics of the competent person are also the properties pos- sessed by the autonomous person.”6x Although definitions of competence vary, in general a patient “is competent to make a decision if he or she has the capacity to understand the material information, to make a judgment about the information in light of his or her values, to intend a certain outcome, and to freely communicate his or her wish to caregivers....”6Y

Psychiatric disorders and cognitive impairments can undermine these aspects of c o m p e t e n ~ y . ~ ~ ‘%Autonomy rests on the substrate of patient mental competence. Disease, particularly mental illness, threatens this substrate.”” Not surprisingly, therefore, the Ninth Circuit suggested that “psychological examinations to ensure that the patient is not suffering from momentary or treatable depression” may

be con~titutional.’~ Indeed, given evidence that many physicians fail to recognize or treat clinical depression,7’ a state may require that the examination be performed by a mental health specialist, as the Model Act proposes.74

The Second Circuit, for its part, seemed to approve a state requirement for “psychiatric e v a l ~ a t i o n . ” ~ ~ The Sec- ond Circuit’s casual approval must be treated cautiously, because it appears to be inconsistent with the court’s basic equal protection rationale: that there is a single class of terminally ill patients who wish to hasten their deaths, some of whom are able to carry out that decision by refusing the continuation of life-support systems and others only by self-administering lethal medication. Two members of a class can be treated unequally in many ways. A prohibition is one form of unequal treatment, but so is a differential burden. N o one would suppose, for example, that a state could lawfully impose a psychiatric consultation requirement on a terminally ill patient who wanted to refuse a nasogastric feeding tube but not on a patient who wanted to refuse a gastrostomy. The two patients are in a single class, identical in all pertinent ways, and so a heavier burden on one would be irrational.

The state could argue that patients contemplating suicide are more likely to be suffering from clinical depression or another psychiatric illness.7h Yet the decision for which competency is required is not a decision to ask for lethal medication, it is the decision to hasten death; the particular means by which that decision is carried out- self-administered prescribed medication-depends simply on the happenstance that the patient is not on life-support equipment. A state would be speculating well beyond the data if it contended that terminally ill patients who are not on life support and who wish to die are more likely to be clinically depressed than patients who are on life support and who wish to die. If the Second Circuit remains true to its equal protection logic, it would reject this differential burden on members of the same class.

Informed consent. Autonomous decision making requires adequate information. This simple point is at the heart of the doctrine of informed consent, the primary purpose of which “is to enable and protect individual autonomous choice.”77 Therefore, a state legislature ought to be constitutionally free to mandate the provision of information to a patient considering suicide, including information about palliative care.7x The Oregon and Model Acts provide for this kind of informed consent proce~s.’~ Mea- sures to ensure that the informed consent process is carried out properly-for example, special documentation requirements and the use of consent monitors (that is, witnesses to the informed consent process)80-would also be constitutional.

Protection of voluntary choice. Both the Second and Ninth Circuits recognize that a patient’s choice of PAS would reflect that individual’s autonomy only if the choice

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were voluntary, free of coercion and improper influence. Therefore, a state may impose procedural safeguards like “witnesses to ensure voluntariness.”x’ A state could require that these witnesses be disinterested. As noted above, a state may require consent monitors. Both courts also suggested that a state could impose a waiting period, so that the patient would have time to think through the decision, free of family or other pressures. The Ninth Circuit wrote favorably of “reasonable, though short, waiting periods to prevent rash decisions.”X2

But when does a short waiting period become too long, and therefore unduly burdensome? The Oregon Act requires at least fifteen days between the patient’s initial oral request for suicide assistance and the writing of the lethal prescription.n3 A waiting period of this duration is probably a substantive due process violation, because it imposes fifteen days of additional suffering without any supportable link to the state’s interest in promoting a considered choice. Surely many patients would arrive at a voluntary, settled decision much sooner than that. For them, the burden of a fifteen-day wait would be a substantial obstacle to hastening death. Courts, relying on the admittedly imper- fect abortion analogy, are more likely to approve a shorter waiting period, perhaps twenty-four or forty-eight

Analysis of Quill suggests that waiting periods present an equal protection issue as well. Among the class of terminally ill patients wishing to hasten death, those on life- support equipment need not wait any specified period: How could a state justify a waiting period for those not on life support? Perhaps it could be argued that the stigma histori- cally associated with suicide affords a rational basis for requiring a period of reflection. Yet the basis of the Second Circuit’s decision is that assisted suicide and withdrawal of life support are indistinguishable. Withdrawal of life support is suicide. It would be odd, then, to compel those whose desire for death can only be accomplished through self-administered medication, because they are not on life support, to suffer longer, merely as a consequence of society’s mistaken (and unconstitutional) view of suicide as a matter different from treatment withdrawal.

Deterring coercion. The Oregon Act makes it a felony to “coerc[e] or exer[t] undue influence on a patient to request medication for the purpose of ending the patient’s life....”x’ Although there is no constitutional impediment to a state regulation that attempts to specify the prohibited practices, the broad terms coercion and undue influence have a rich common law background, particularly in the law of wills, and may not need further specification.K6 A state may wish to provide regulatory detail, however, on the health insurance consequences of legalized PAS. Pailia- tive care may need to be a mandated benefit to avoid insur- ers’ bias toward the low-cost alternative-suicide.

Reducing prognostic errox Because PAS can be limited for now to patients who are terminally ill, states are free

not only to legislate a definition of terminal illness but also to require second opinions to reduce the risk that a patient is erroneously characterized as terminally ill.x7 The Oregon Act requires a consulting physician’s confirmation of the patient’s diagnosis and decision-making capacity.x” The Model Act contains like provisions, with the additional requirement that a specialist confirm the patient’s capac- ityx9 At least in states that incorporate a second-opinion approach in advance directive and health care proxy legislation,yO such a prerequisite to PAS ought not to run afoul of the Second Circuit’s equal protection analysis.

Documentation and record review. If states may impose various prerequisites to the practice of PAS, they may require documentary evidence of compliance with the prerequisites. Documentation of the patient’s qualifying condition and competence, for example, would be essential (just as states with surrogate decision-making laws require documentation of the patient’s qualifying condition and incapacity).

The Ninth Circuit’s dicta went further, suggesting that states may impose “reporting requirements that will aid in the avoidance of abuse.”” Because states may continue to impose criminal or professional sanctions on acts of assisted suicide beyond the zone of constitutional protection, presumably this reporting requirement may involve review of the documentation by prosecutors or licensing officials.yz

In equal protection terms, a state would have a legitimate interest in gathering data about the new practice of PAS, in part to determine the nature of practicc patterns and to assess the adequacy of regulation. Reporting requirements reasonably linked to this objective would be constitutional.

Judicial supervision. The dicta about procedural safeguards in both the Second and Ninth Circuit decisions seem premised on the assumption that the procedures would be applied in the clinical setting. This assumption is under- standable, for decisions to forgo life-sustaining medical treatments are usually made in the clinical setting. Neither the Oregon Act nor the Model Act envisions routine judicial involvement. The fundamental prerequisites for a valid decision in favor of assisted suicide are considered to be clinical judgments: that the patient has a qualifying condition, is competent, and has been provided with the information necessary for an informed choice. The Model Act, however, introduces third-party observers into the process. Two witnesses are required to observe the informed consent discussion and are permitted to question the patient and physician “to ascertain that the patient has, in fact, heard and understood all of the material information....””

The Model Act does not identify a mechanism for review of the decision making if a witness believes that the patient in fact is unable to understand the choices presented. A state may seek to move to the next step by requiring some type of review of an assisted suicide request if a wit-

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ness to the request for lethal medication or to the informed consent process expressed doubt about the patient’s competency or the adequacy of informed consent, even if the patient and physician were in accord.

Review may take the form of an ethics committee consultation, if a state legislature sought to maintain the clinical character of the decision making. Ethics committees can serve to double-check important medical facts, to assess patient preferences, and to strive for consensus.y4 Yet state policy makers may decide instead to shift any remotely doubtful case from the clinical setting to the court. A state could do so by giving consent monitors standing to chal- lenge any decision for assisted suicide.”

Under a substantive due process analysis, this judicial review requirement would probably not be considered an undue burden. The premise of a right to assisted suicide is autonomous choice. If that premise is called into question, 2 state may presumably call on its traditional fact-finding mechanism to resolve the dispute. Any judicial review mechanism, however, must operate quickly. Judicial review that is too slow would in practice defeat the right granted in theory and would therefore be unconstitutional. An analo- gous problem is presented by judicial review of a minor’s decision to have an abortion. When a minor asks a court to approve an abortion after her parents refuse to consent, the court procedures must be “completed with ... sufficient expedition to provide an effective opportunity for an abortion to be obtained.”y6 Analogously, judicial review of a patient’s request for PAS must be swift enough to fore- stall prolonged suffering.

Under the Second Circuit’s equal protection analysis, the issue would be whether an easily triggered judicial review requirement could constitutionally be imposed only on death-seeking patients who are not on life-support equipment. A state could do so only if it plausibly asserted that these patients are in special need of judicial protection against physician error in determining competence and voluntariness, as compared with patients who want to withdraw life support. For the reasons discussed earlier, that assertion is not likely to be supportable.

Conscientious objection. The Oregon Act9’ and the Model ActyH both allow physicians to decline to participate in PAS. Provisions of this kind are consistent with the two cases and with most states’ advance directive statutes.” Indeed, the Ninth Circuit asserted that “[r]ecognizing the right to ‘assisted-suicide’ would not require doctors to do anything contrary to their individual principle^."'"^ States may give statutory effect to this dictum, which is an appli- cation of the general rule that a patient does not have a right to compel an unwilling health care provider to administer any medical procedure.’0’

A statutory conscience clause would negate any claim that a physician’s refusal to assist a suicide amounts to patient abandonment. In a broader sense, a conscience

clause encourages what might be called prospective abandonment: the refusal of most physicians to provide a service, and, hence, the denial of that service to most patients in a region. This potential result, however, does not affect the legal validity of a conscience cIause.lo2

Impact on the right to refuse life-sustaining procedures Suppose that the Second Circuit’s reasoning, but not the Ninth Circuit’s, is ultimately endorsed by the Supreme Court. What impact would the decision potentially have on the right to die as it has been understood until now?

A competent patient, even one who is not terminally ill, has, in the words of one commentator, a “right to refuse medical treatment [that] is virtually absolute.”’”3 This cul- mination of the informed consent doctrine has been accepted by state legislatures. More than that: state legislatures have enacted proxy and decisional advance directive laws that have facilitated (at least in theory) the right to refuse life-sustaining treatment.Io4

This liberalizing trend might be slowed, or even re- versed, by the Second Circuit’s pronouncement that “the ending of life by [withdrawal of life support] is nothing more nor less than assisted s~icide.”“’~ I am not suggesting that state legislatures will seek to force competent patients to accept unwanted treatment; substantive due process, as understood in Crwan, would prohibit such an invasion of individual rights.’”6 Nonetheless, if refusals of life support really are acts of suicide, as the Second Circuit has it, a state legislature may consider for the first time regulating treatment refusals by competent patients in some ways- particularly if expanding the scope of regulation to the whole of the class identified by the Second Circuit is the only way to ensure the constitutionality of regulations aimed at PAS. For example, if formal competency assessments cannot be limited, under Quill’s reasoning, to those who seek death by lethal medication, a state legislature may decide to require formal competency assessments for those who forgo life-sustaining treatments as well. As one commentator points out: “If states adopt such regulations, the hard-won rights that the great majority of patients can and do now exercise to refuse medical treatments are put at risk, since mandatory procedural safeguards can actually frustrate rather than foster the self-determination of patients.”’”’

Quill’s equal protection analysis may likewise curtail the trend toward more permissive advance directive laws. A state legislature, looking down the litigation road, can only assume that Quill is the first step toward a broadened right of assisted suicide. In Quill‘s terms, competent patients who are now terminally ill may obtain PAS by refusing continued life support. But in nearly every state, competent patients may also anticipate future terminal illness

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through advance directives that refuse continued life support under those circumstances. Despite the patient’s incapacity at the time of decision, the advance directive is a sufficient basis for health care providers to withdraw treatment; no court proceeding is necessary, and the providers are typically given immunity.

A state legislature may reasonably fear that Quill’s equal protection ratchet would give effect to advance directives that not only refuse life support but also ask for lethal medication if needed to hasten death. To be sure, the patient would be incapacitated at the time of the suicide. Yet, if that fact is immaterial as a matter of state policy when death is hastened by treatment withdrawal, it is hard to see why incapacity becomes a source of legitimate state concern merely because death is hastened by lethal medication. As the Second Circuit would have it, the particular method of death is simply the result of the vagaries of disease. What is the state’s rational basis for denying the ben- efits of advance directives to those whose expressed desire for hastened death can only be met through lethal medication? The only sure way to prevent an inexorable expansion of statutory advance directive rights, a legislature may conclude, would be to limit those rights for all members of the class.

This aspect of Quill‘s slippery slope would not, in all likelihood, actually result in legislative retrenchment con- cerning advance directives. The political pressures that led, first, to the enactment of living will laws and, later, broadened advance directive laws have not diminished. More likely, Quill, if upheld, would chill further expansion of advance directive laws, because legislatures would have to worry whether every proposed reform-eased procedural requirements, for example-would be transformed by the courts into an expanded opportunity for assisted suicide.

Conclusion The two PAS decisions represent a judicial tour de force, albeit one embodying misguided constitutional reasoning. I3y late June 1997, the Supreme Court will likely have ruled that law making about assisted suicide is a problem for state legislatures to resolve as best they can, largely uncon- fined by the U.S. Constitution.“Ix

The overturning of Compassion in Dying and Quill will not end the debate, any more than a different result in Roe u. Wade would have ended the abortion debate. In- stead, the debate will shift, as it should, from constitutional law to public policy, The weight of public opinion in favor of PAS ensures that policy makers will face the issue anyway, whatever the Supreme Court does. In a recent poll, about two-thirds of the public agreed that both PAS and euthanasia should be available to cancer patients “in ex- cruciating pain”; just short of half favored the availability of both interventions for cancer patients experiencing no

pain but “debilitated and [unable to] get out of bed or provide self-care.”’”9

Oregon’s Death with Dignity Act is the first statutory regulation of PAS, and it will not be the last. Policy makers in many states will begin the difficult job of trying to fashion a sensible regulatory framework. The regulatory issues brought to prominence by Compassion in Dying and Quill will still engage us long after the two decisions themselves recede into the shadows.

Acknowledgments The author is grateful to Susanna Bedell, Karen Rothen- berg, and the journal’s peer reviewers for their comments on earlier drafts of this article. The views expressed in this article are personal and should not be attributed to any entity with which the author is affiliated.

References 1. Compassion in Dying u. State of Washington, 79 E3d

790 (en banc), reh’g en banc &y full court denied, 85 E3d 1440 (9th Cir. 1996), cert. grantedsub nom. Washington v. Clucksberg,

2. Quill u. Vacco, 80 E3d 716 (2d Cir. 1996), cert. granted,

3. Apart from passing references, I do not consider whether constitutionally permissible state regulations would in practice actually achieve the goals of regulation. For an argument that any attempted regulation of PAS is worthless, see D. Callahan and M. White, “The Legalization of Physician-Assisted Suicide: Creating a Regulatory Poternkin Village,” University of lirch- mond Law Review, 30 (1996): 1-83.

4. Crumn v. Director, Missouri Dep’t of Health, 497 U.S. 261 (1990).

S. Planned Parenthood v. Casey, SO5 U.S. 833 (1992). 6. Compassion in Dying, 79 E3d at 816. 7. Id. at 837. 8. Id. at 832. 9. Id.

6.5 U.S.L.W. 3254 (U.S. Oct. 1, 1996) (NO. 96-110).

6.5 U.S.L.” 3254 (U.S. Oct. 1, 1996) (NO. 95-1858).

10. Id. at 832-33. 11. Id. at 833. 12. Id. 13. Quill, 80 E3d at 724-25. 14. Id. at 724. 15. Id. at 727. 16. Id. at 729. 17. Id. 18. Id. at 730 (quoting Casey, 505 US. at 8.51). 19. Id. 20. Id. 21. Id. at 731. 22. Id. at 731 n.4. 23. Statutes in thirty-five states prohibit assisted suicide. The

list is in Compassion in Dying, 79 E3d at 847 n.10 (Beezer, J., dissenting). In seven other states and the District of Columbia, assisted suicide may be punished as a common law crime. A. Meisel, The Right to Die (New York: Wiley, 2nd ed., 1995): 18.17, at 470.

24. See, for example, T.E. Quill, C.K. Cassel, and D.E. Meier, “Care of the Hopelessly Ill: Proposed Clinical Criteria for I’hy-

214


sician-Assisted Suicide,” N. Engl. J. Med., 327 (1992): 1380- 84.

25. The Ninth Circuit itself did not adopt the “undue burden” test of Casey, but the court recognized that the outcome would have been the same had it done so. Compassion in Dy- ing, 79 F.3d at 837 n.137.

26. Casey, 505 U.S. at 875. 27. Quill, 80 F.3d at 729. 28. Id. 29. Oregon Death with Dignity Act, Or. Rev. Stat. §§127.800

et seq. (1995) (hereafter the “Oregon Act”). 30. C.H. Baron et al., ‘A Model State Act to Authorize and

Regulate Physician-Assisted Suicide,” Haruard Journal on Legis- lation, 33 (1996): 1-34 (hereaiter the “Model Act”).

31. Meisel, supra note 23, § 18.23, at 508. 32. E.J. Emanuel and E. Daniels, “Oregon’s Physician-As-

sisted Suicide Law: Provisions and Problems,” Archives of Inter- nal Medicine, 156 (1996): 825-29.

33. Lee v. Oregon, 891 F. Supp. 1429 (D. Or. 1995). 34. Callahan and White, supra note 3, at 75. 35. Compassion in Dying, 79 F.3d at 816. 36. For an account of why the logic of this limitation is

dubious, once the premise of a constitutional right to PAS is accepted, see Y. Kamisar, “Against Assisted Suicide-Even a Very Limited Form,” University of Detroit Mercy Law Review, 72 (1995): 735-69.

37. Baron et al., supra note 30, at 11, 26. 38. Quill, 80 F.3d at 731. 39. Id. at 729. 40. See, for example, State v. McAfee, 385 S.E.2d 651 (Ga.

41. See People v. Kevorkian, 527 N.W!2d 714,732 n.9 (Mich.

42. Citations to the various definitions are collected in Mei-

43. Or. Rev. Stat. § 127.800(12) (1995). 44. 42 U.S.C. § 1395x(dd)(3)(A) (1994). The Model Act

also uses the criterion of death within six months. Baron et al., supra note 30, at 26. For an account of the clinical difficulty in making determinations of this kind, see Callahan and White, supra note 3, at 45-47.

45. Abortion jurisprudence from the outset was able to identify a relatively precise point-viability-at which the state’s interest in protecting the life of the fetus outweighed the woman’s interest in deciding whether to continue the pregnancy. Roe v. Wade, 412 U.S. 113, 163 (1973).

46. Compassion in Dying, 79 F.3d at 837; and Quill, 80 F.3d at 731.

47. Or. Rev. Stat. §§ 127.800(11), 127.805 (1995). 48. Baron et al., supra note 30, at 27. 49. The federal district court held the Oregon Act to be

unconstitutional in part because it failed to protect against in- competency at the time the patient takes the prescribed medication. Lee, 891 F. Supp. at 1437.

50. In re Quinlan, 355 A.2d 647 (N.J.), cert. denied sub nom. Garger v. New Jersey, 429 U.S. 922 (1976).

51. National Center for State Courts, Guideline for State Court Decision Making in Life-Sustaining Medical Treatment Cases (Williamsburg: National Center for State Courts, 2nd ed., 1992): at 56 n.82.

52. Compassion in Dying, 79 F.3d at 794-95; and Quill, 80 F.3d at 720.

53. See, for example, Compassion in Dying, 79 F.3d at 821 (“the final stages of an incurable and painful degenerative disease”); and Quill, 80 F.3d at 730 (“the continuation of agony”).

1989).

1994), cert. denied, 115 S . Ct. 1795 (1995).

sel, supra note 23, § 11.9 at 94-96.

54. See Bouvia v. Superior Court, 225 Cal. Rptr. 297 (Cal.

55. Baron et al., supra note 30, at 11. 56. Or. Rev. Stat. § 127.800(12) (1995). 57. E.J. Cassell, “The Nature of Suffering and the Goals of

Medicine,” N. Engl. J. Med., 306 (1982): 640-45. 58. New York State Task Force on Life and the Law, When

Death Is Sought: Assisted Suicide and Euthanasia in the Medical Context (New York: New York State Task Force on Life and the Law, 1994): at 2.

App. 1986).

59. Baron et al., supra note 30, at 25. 60. Compassion in Dying, 79 F.3d at 831. 6 1. Id. at 832. 62. Id. 63. Quill, 80 F.3d at 730. 64. Among proponents, see D.W Brock, “Voluntary Active

Euthanasia,” Hustings Center Report, 22, no. 2 (1992): 10-22; and F.G. Miller et al., “Regulating Physician-Assisted Death,” N. Engl. J. Med., 331 (1994): 119-23. Among opponents, see Kamisar, supra note 36.

65. Both the Oregon Act and the Model Act maintain the distinction. Or. Rev. Stat. 5 127.880 (1995); and Baron et al., supra note 30, at 10. A state may include a definition of suicide to differentiate it from euthanasia. See, for example, Gentry v. State, 625 N.E.2d 1268, 1273 (Ind. App. 1993).

66. I do not attempt to canvass every conceivable type of regulation. For example, I do not discuss the potential role of palliative care consultants or committees, see Miller et al., supra note 64; notification to family members, see Or. Rev. Stat. § 127.835 (1995); a residency requirement, see Or. Rev. Stat. § 127.860 (1995); or the use of public funds for assisted suicide, see the Assisted Suicide Funding Restoration Act, S. 2108, 104th Cong. (1 996) (prohibiting federal funding of assisted suicides).

67. Compassion in Dying, 79 F.3d at 814 (internal quota- tion marks and citation omitted).

68. T.L. Beauchamp and J.F. Childress, Principles of Bio- medical Ethics (New York: Oxford University Press, 4th ed., 1994): at 135.

69. Id. 70. See, for example, PS. Appelbaum and L.H. Roth, “Com-

petency to Consent to Research: A Psychiatric Overview,” Ar- chives of General Psychiatry, 39 (1982): 951-58; and M. Freed- man, D.T. Stuss, and M. Gordon, “Assessment of Competency: The Role of Neuro-Behavioral Deficits,” Annals of Internal Medi- cine, 115 (1991): 203-08.

71. E.K!D. Young, J.C. Corby, and R. Johnson, “Does De- pression Invalidate Competence? Consultants’ Ethical, Psychi- atric, and Legal Considerations,” Cambridge Quarterly ofHealth- care Ethics, 2 (1993): at 513.

72. Compassion in Dying, 79 F.3d at 833. 73. The evidence on this point is summarized in New York

State Task Force on Life and the Law, supra note 58, at 126-28. 74. Baron et al., supra note 30, at 29. The Oregon Act per-

mits, but does not require, a counseling referral to a mental health specialist. Or. Rev. Stat. § 127.825 (1995).

75. Quill, 80 F.3d 731 n.4. 76. See, for example, H. Hendin and G. Klerman, “Physi-

cian-Assisted Suicide: The Dangers of Legalization,” American Journal of Psychiatry, 150 (1993): 143-45.

77. Beauchamp and Childress, supra note 68, at 142. 78. Quill, 80 F.3d at 731 n.4. 79. Or. Rev. Stat. §§ 127.800(7), 127.815(2) (1995); and

Baron et al., supra note 30, at 27-28. For an argument that, in reality, the trappings of informed consent would often conceal subtle manipulation, see Callahan and White, supra note 3, at

215


28-29; and New York State Task Force on Life and the Law, supra note 58 , at 121-22. See also S.H. Miles, “Physicians and Their Patients’ Suicides,” JAMA, 271 (1994): 1786-88.

80. The Model Act includes these requirements. Baron et al., supra note 30, at 28-31.

81. Compassion in Dying, 79 E3d at 833. 82. Id. See also Quill, 80 F.3d at 731 n.4. 83. Or. Rev. Stat. s 127.850 (1995). 84. Planned Parenthood v. Casey approved the facial consti-

tutionality of a twenty-four-hour waiting period while leaving open the possibility that the requirement would be an undue burden in particular cases. Casey, 505 U.S. at 885-87.

85. Or. Rev. Stat. § 127.890(2) (1995). 86. See J. Bowe and D.H. Parker, Page on the Law of Wills

87. Compassion in Dying, 79 F.3d at 833; and Quill, 80

88. Or. Rev. Stat. § 127.820 (1995). 89. Baron et al., supra note 30, at 29. 90. See, for example, Md. Code Ann., Health-Gen. s 5-606

91. 79 F.3d at 833. 92. The Oregon Act contemplates administrative rules “to

facilitate the collection of information regarding compliance” with the Act. Or. Rev. Stat. s 127.865 (1995). The Model Act would require reporting to the chief health officer of a state. Baron et al., supra note 30, at 30.

(Cincinnati: WH. Anderson, 1960): §§ 15.1-.14.

F.3d a t 73 1.

(1994).

93. Id. at 28. 94. Meisel, supra note 23, s 6.5, at 295. 95. Legislation requiring the courts to approve every case

of requested suicide, whether disputed or not, would violate separation of powers principles by requiring courts to perform a nonjudicial function.

96. Bellotti v. Baird, 443 U.S. 622, 644 (1979). 97. Or. Rev. Stat. s 127.885(4) (1995). 98. Baron eta]., supra note 30, at 33. 99. Meisel, supra note 23, § 17.23, at 430.

100. Compassion in Dying, 79 F.3d at 830. 101. Meisel, supra note 23, § 19.12, at 549. 102. See generally, S.A. Law, “Silent No More: Physicians’

Legal and Ethical Obligations to Patients Seeking Abortion,” New York University Review of Law and Social Change, 21 (1995): 279-321.

103. Meisel, supra note 23, § 8.2, at 470. 104. The gap between legal theory and clinical reality is il-

lustrated by the outcome of the SUPPORT intervention trial. See the SUPPORT Principal Investigators, “A Controlled Trial to Improve Care for Seriously Ill Hospitalized Patients: The Study to Understand Prognoses and Preferences for Outcomes and Risks of Treatment,”jAMA, 274 (1995): 1591-98. An explanation for results of this kind may be found in, for example, D. Orentlicher, “The Limits of Legislation,” Maryland Law Review, 53 (1994): 1255-305.

105. Quill, 80 F.3d at 729. 106. Cruzan, 497 U.S. at 278. 107. G.J. Annas, “The Promised End-Constitutional Aspects

of Physician-Assisted Suicide,” N. Engl. j. Med., 335 (1996):

108. In rejecting the reasoning of the lower court decisions, the Supreme Court can be expected to apply the constitutional analysis presented in, for example, Y. Kamisar, “Are Laws Against Assisted Suicide Unconstitutional?,” Hustings Center Report, 23, no. 3 (1993): 32-41; C.H. Coleman and T.E. Miller, “Stem- ming the Tide: Assisted Suicide and the Constitution,” journal of Law, Medicine &Ethics, 23 (1995): 389-97; and A.M. Ca- pron, “Easing the Passing,’’ Hustings Center Report, 24, no. 4

109. E. J. Emanuel et al., “Euthanasia and Physician-Assisted Suicide: Attitudes and Experiences of Oncology Patients, On- cologists, and the Public,” Lancet, 347 (1996): 1805-10. These results are consistent with other surveys. See, for example, J.C. Bachman et al., “Attitudes of Michigan Physicians and the Pub- lic Toward Legalizing Physician-Assisted Suicide and Voluntary Euthanasia,” N. Engl. j. Med., 334 (1996): 303-09.

683-87.

(1994): 25-26.

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Documents

Writing the Rules of Death: State Regulation of Physician-Assisted Suicide