06/26/97 WASHINGTON et al. v. GLUCKSBERG et al.
BLUE BOOK CITATION FORM: 1997.SCT.85 (http://www.versuslaw.com)
[Editor's note: footnotes (if any) trail the opinion]
(Bench Opinion)
NOTE: Where it is feasible, a syllabus (headnote) will be released, as
is being done in connection with this case, at the time the opinion is
issued. The syllabus constitutes no part of the opinion of the Court but
has been prepared by the Reporter of Decisions for the convenience of
the reader. See United States v. Detroit Timber & Lumber Co., 200
U. S. 321, 337.
SUPREME COURT OF THE UNITED STATES
Syllabus
WASHINGTON et al.
v.
GLUCKSBERG et al.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
No. 96-110.
Argued January 8, 1997
Decided June 26, 1997
It has always been a crime to assist a suicide in the State of Washington.
The State's present law makes "[p]romoting a suicide attempt"
a felony, and provides: "A person is guilty of [that crime] when
he knowingly causes or aids another person to attempt suicide." Respondents,
four Washington physicians who occasionally treat terminally ill, suffering
patients, declare that they would assist these patients in ending their
lives if not for the State's assisted-suicide ban. They, along with three
gravely ill plaintiffs who have since died and a nonprofit organization
that counsels people considering physician-assisted suicide, filed this
suit against petitioners, the State and its Attorney General, seeking
a declaration that the ban is, on its face, unconstitutional. They assert
a liberty interest protected by the Fourteenth Amendment's Due Process
Clause which extends to a personal choice by a mentally competent, terminally
ill adult to commit physician-assisted suicide. Relying primarily on Planned
Parenthood of Southeastern Pa. v. Casey, 505 U. S. 833, and Cruzan v.
Director, Mo. Dept. of Health, 497 U. S. 261, the Federal District Court
agreed, concluding that Washington's assisted-suicide ban is unconstitutional
because it places an undue burden on the exercise of that constitutionally
protected liberty interest. The en banc Ninth Circuit affirmed.
Held: Washington's prohibition against "caus[ing]" or "aid[ing]"
a suicide does not violate the Due Process Clause. Pp. 5-32.
(a) An examination of our Nation's history, legal traditions, and practices
demonstrates that Anglo-American common law has punished or otherwise
disapproved of assisting suicide for over 700 years; that rendering such
assistance is still a crime in almost every State; that such prohibitions
have never contained exceptions for those who were near death; that the
prohibitions have in recent years been reexamined and, for the most part,
reaffirmed in a number of States; and that the President recently signed
the Federal Assisted Suicide Funding Restriction Act of 1997, which prohibits
the use of federal funds in support of physician-assisted suicide. Pp.
5-15.
(b) In light of that history, this Court's decisions lead to the conclusion
that respondents' asserted "right" to assistance in committing
suicide is not a fundamental liberty interest protected by the Due Process
Clause. The Court's established method of substantive-due-process analysis
has two primary features: First, the Court has regularly observed that
the Clause specially protects those fundamental rights and liberties which
are, objectively, deeply rooted in this Nation's history and tradition.
E.g., Moore v. East Cleveland, 431 U. S. 494, 503 (plurality opinion).
Second, the Court has required a "careful description" of the
asserted fundamental liberty interest. E.g., Reno v. Flores, 507 U. S.
292, 302. The Ninth Circuit's and respondents' various descriptions of
the interest here at stake-e.g., a right to "determin[e] the time
and manner of one's death," the "right to die," a "liberty
to choose how to die," a right to "control of one's final days,"
"the right to choose a humane, dignified death," and "the
liberty to shape death"-run counter to that second requirement. Since
the Washington statute prohibits "aid[ing] another person to attempt
suicide," the question before the Court is more properly characterized
as whether the "liberty" specially protected by the Clause includes
a right to commit suicide which itself includes a right to assistance
in doing so. This asserted right has no place in our Nation's traditions,
given the country's consistent, almost universal, and continuing rejection
of the right, even for terminally ill, mentally competent adults. To hold
for respondents, the Court would have to reverse centuries of legal doctrine
and practice, and strike down the considered policy choice of almost every
State. Respondents' contention that the asserted interest is consistent
with this Court's substantive-due-process cases, if not with this Nation's
history and practice, is unpersuasive. The constitutionally protected
right to refuse lifesaving hydration and nutrition that was discussed
in Cruzan, supra, at 279, was not simply deduced from abstract concepts
of personal autonomy, but was instead grounded in the Nation's history
and traditions, given the common-law rule that forced medication was a
battery, and the long legal tradition protecting the decision to refuse
unwanted medical treatment. And although Casey recognized that many of
the rights and liberties protected by the Due Process Clause sound in
personal autonomy, 505 U. S., at 852, it does not follow that any and
all important, intimate, and personal decisions are so protected, see
San Antonio School Dist. v. Rodriguez, 411 U. S. 1, 33-34. Casey did not
suggest otherwise. Pp. 15-24.
(c) The constitutional requirement that Washington's assisted-suicide
ban be rationally related to legitimate government interests, see e.g.,
Heller v. Doe, 509 U. S. 312, 319-320, is unquestionably met here. These
interests include prohibiting intentional killing and preserving human
life; preventing the serious public-health problem of suicide, especially
among the young, the elderly, and those suffering from untreated pain
or from depression or other mental disorders; protecting the medical profession's
integrity and ethics and maintaining physicians' role as their patients'
healers; protecting the poor, the elderly, disabled persons, the terminally
ill, and persons in other vulnerable groups from indifference, prejudice,
and psychological and financial pressure to end their lives; and avoiding
a possible slide towards voluntary and perhaps even involuntary euthanasia.
The relative strengths of these various interests need not be weighed
exactingly, since they are unquestionably important and legitimate, and
the law at issue is at least reasonably related to their promotion and
protection. Pp. 24-31. 79 F. 3d 790, reversed and remanded.
Rehnquist, C. J., delivered the opinion of the Court, in which O'Connor,
Scalia, Kennedy, and Thomas, JJ., joined. O'Connor, J., filed a concurring
opinion, in which Ginsburg and Breyer, JJ., joined in part. Stevens, J.,
Souter, J., Ginsburg, J., and Breyer, J., filed opinions concurring in
the judgment.
NOTICE: This opinion is subject to formal revision before publication
in the preliminary print of the United States Reports. Readers are requested
to notify the Reporter of Decisions, Supreme Court of the United States,
Wash-ington, D.C. 20543, of any typographical or other formal errors,
in order that corrections may be made before the preliminary print goes
to press.
[1] SUPREME COURT OF THE UNITED STATES
[2] No. 96-110
[3] WASHINGTON, et al.,
[4] PETITIONERS
v.
[5] HAROLD GLUCKSBERG et al.
[6] ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE
NINTH CIRCUIT
[7] June 26, 1997
[8] Chief Justice Rehnquist delivered the opinion of the Court.
[9] The question presented in this case is whether Washington's prohibition
against "caus[ing]" or "aid[ing]" a suicide offends
the Fourteenth Amendment to the United States Constitution. We hold that
it does not.
[10] It has always been a crime to assist a suicide in the State of Washington.
In 1854, Washington's first Territorial Legislature outlawed "assisting
another in the commission of self-murder." *fn1 Today, Washington
law provides: "A person is guilty of promoting a suicide attempt
when he knowingly causes or aids another person to attempt suicide."
Wash. Rev. Code 9A.36.060(1) (1994). "Promoting a suicide attempt"
is a felony, punishable by up to five years' imprisonment and up to a
$10,000 fine. Section(s) 9A.36.060(2) and 9A.20.021(1)(c). At the same
time, Washington's Natural Death Act, enacted in 1979, states that the
"withholding or withdrawal of life-sustaining treatment" at
a patient's direction "shall not, for any purpose, constitute a suicide."
Wash. Rev. Code Section(s) 70.122.070(1). *fn2
[11] Petitioners in this case are the State of Washington and its Attorney
General. Respondents Harold Glucksberg, M. D., Abigail Halperin, M. D.,
Thomas A. Preston, M. D., and Peter Shalit, M. D., are physicians who
practice in Washington. These doctors occasionally treat terminally ill,
suffering patients, and declare that they would assist these patients
in ending their lives if not for Washington's assisted-suicide ban. *fn3
In January 1994, respondents, along with three gravely ill, pseudonymous
plaintiffs who have since died and Compassion in Dying, a nonprofit organization
that counsels people considering physician-assisted suicide, sued in the
United States District Court, seeking a declaration that Wash Rev. Code
9A.36.060(1) (1994) is, on its face, unconstitutional. Compassion in Dying
v. Washington, 850 F. Supp. 1454, 1459 (WD Wash. 1994). *fn4
[12] The plaintiffs asserted "the existence of a liberty interest
protected by the Fourteenth Amendment which extends to a personal choice
by a mentally competent, terminally ill adult to commit physician-assisted
suicide." Id., at 1459. Relying primarily on Planned Parenthood v.
Casey, 505 U. S. 833 (1992), and Cruzan v. Director, Missouri Dept. of
Health, 497 U. S. 261 (1990), the District Court agreed, 850 F. Supp.,
at 1459-1462, and concluded that Washington's assisted-suicide ban is
unconstitutional because it "places an undue burden on the exercise
of [that] constitutionally protected liberty interest." Id., at 1465.
*fn5 The District Court also decided that the Washington statute violated
the Equal Protection Clause's requirement that "`all persons similarly
situated . . . be treated alike.'" Id., at 1466 (quoting Cleburne
v. Cleburne Living Center, Inc., 473 U. S. 432, 439 (1985)).
[13] A panel of the Court of Appeals for the Ninth Circuit reversed,
emphasizing that "[i]n the two hundred and five years of our existence
no constitutional right to aid in killing oneself has ever been asserted
and upheld by a court of final jurisdiction." Compassion in Dying
v. Washington, 49 F. 3d 586, 591 (1995). The Ninth Circuit reheard the
case en banc, reversed the panel's decision, and affirmed the District
Court. Compassion in Dying v. Washington, 79 F. 3d 790, 798 (1996). Like
the District Court, the en banc Court of Appeals emphasized our Casey
and Cruzan decisions. 79 F. 3d, at 813-816. The court also discussed what
it described as "historical" and "current societal attitudes"
toward suicide and assisted suicide, id., at 806-812, and concluded that
"the Constitution encompasses a due process liberty interest in controlling
the time and manner of one's death-that there is, in short, a constitutionally-recognized
`right to die.' " Id., at 816. After "[w]eighing and then balancing"
this interest against Washington's various interests, the court held that
the State's assisted-suicide ban was unconstitutional "as applied
to terminally ill competent adults who wish to hasten their deaths with
medication prescribed by their physicians." Id., at 836, 837. *fn6
The court did not reach the District Court's equal-protection holding.
Id., at 838. *fn7 We granted certiorari, 519 U. S. ___ (1996), and now
reverse.
I.
[14] We begin, as we do in all due-process cases, by examining our Nation's
history, legal traditions, and practices. See, e.g., Casey, 505 U. S.,
at 849-850; Cruzan, 497 U. S., at 269-279; Moore v. East Cleveland, 431
U. S. 494, 503 (1977) (plurality opinion) (noting importance of "careful
`respect for the teachings of history'"). In almost every State-indeed,
in almost every western democracy-it is a crime to assist a suicide. *fn8
The States' assisted-suicide bans are not innovations. Rather, they are
longstanding expressions of the States' commitment to the protection and
preservation of all human life. Cruzan, 497 U. S., at 280 ("[T]he
States-indeed, all civilized nations-demonstrate their commitment to life
by treating homicide as a serious crime. Moreover, the majority of States
in this country have laws imposing criminal penalties on one who assists
another to commit suicide"); see Stanford v. Kentucky, 492 U. S.
361, 373 (1989) ("[T]he primary and most reliable indication of [a
national] consensus is . . . the pattern of enacted laws"). Indeed,
opposition to and condemnation of suicide-and, therefore, of assisting
suicide-are consistent and enduring themes of our philosophical, legal,
and cultural heritages. See generally, Marzen, O'Dowd, Crone & Balch,
Suicide: A Constitutional Right?, 24 Duquesne L. Rev. 1, 17-56 (1985)
(hereinafter Marzen); New York State Task Force on Life and the Law, When
Death is Sought: Assisted Suicide and Euthanasia in the Medical Context
77-82 (May 1994) (hereinafter New York Task Force).
[15] More specifically, for over 700 years, the Anglo-American common-law
tradition has punished or otherwise disapproved of both suicide and assisting
suicide. *fn9 Cruzan, 497 U. S., at 294-295 (Scalia, J., concurring).
In the 13th century, Henry de Bracton, one of the first legal-treatise
writers, observed that "[j]ust as a man may commit felony by slaying
another so may he do so by slaying himself." 2 Bracton on Laws and
Customs of England 423 (f. 150) (G. Woodbine ed., S. Thorne transl., 1968).
The real and personal property of one who killed himself to avoid conviction
and punishment for a crime were forfeit to the king; however, thought
Bracton, "if a man slays himself in weariness of life or because
he is unwilling to endure further bodily pain . . . [only] his movable
goods [were] confiscated." Id., at 423-424 (f. 150). Thus, "[t]he
principle that suicide of a sane person, for whatever reason, was a punishable
felony was . . . introduced into English common law." *fn10 Centuries
later, Sir William Blackstone, whose Commentaries on the Laws of England
not only provided a definitive summary of the common law but was also
a primary legal authority for 18th and 19th century American lawyers,
referred to suicide as "self-murder" and "the pretended
heroism, but real cowardice, of the Stoic philosophers, who destroyed
themselves to avoid those ills which they had not the fortitude to endure
. . . ." 4 W. Blackstone, Commentaries *189. Blackstone emphasized
that "the law has . . . ranked [suicide] among the highest crimes,"
ibid, although, anticipating later developments, he conceded that the
harsh and shameful punishments imposed for suicide "borde[r] a little
upon severity." Id., at *190.
[16] For the most part, the early American colonies adopted the common-law
approach. For example, the legislators of the Providence Plantations,
which would later become Rhode Island, declared, in 1647, that "[s]elf-murder
is by all agreed to be the most unnatural, and it is by this present Assembly
declared, to be that, wherein he that doth it, kills himself out of a
premeditated hatred against his own life or other humor: . . . his goods
and chattels are the king's custom, but not his debts nor lands; but in
case he be an infant, a lunatic, mad or distracted man, he forfeits nothing."
The Earliest Acts and Laws of the Colony of Rhode Island and Providence
Plantations 1647-1719, p. 19 (J. Cushing ed. 1977). Virginia also required
ignominious burial for suicides, and their estates were forfeit to the
crown. A. Scott, Criminal Law in Colonial Virginia 108, and n. 93, 198,
and n. 15 (1930).
[17] Over time, however, the American colonies abolished these harsh
common-law penalties. William Penn abandoned the criminal-forfeiture sanction
in Pennsylvania in 1701, and the other colonies (and later, the other
States) eventually followed this example. Cruzan, 497 U. S., at 294 (Scalia,
J., concurring). Zephaniah Swift, who would later become Chief Justice
of Connecticut, wrote in 1796 that
[18] "[t]here can be no act more contemptible, than to attempt to
punish an offender for a crime, by exercising a mean act of revenge upon
lifeless clay, that is insensible of the punishment. There can be no greater
cruelty, than the inflicting [of] a punishment, as the forfeiture of goods,
which must fall solely on the innocent offspring of the offender. . .
. [Suicide] is so abhorrent to the feelings of mankind, and that strong
love of life which is implanted in the human heart, that it cannot be
so frequently committed, as to become dangerous to society. There can
of course be no necessity of any punishment." 2 Z. Swift, A System
of the Laws of the State of Connecticut 304 (1796).
[19] This statement makes it clear, however, that the movement away from
the common law's harsh sanctions did not represent an acceptance of suicide;
rather, as Chief Justice Swift observed, this change reflected the growing
consensus that it was unfair to punish the suicide's family for his wrongdoing.
Cruzan, supra, at 294 (Scalia, J., concurring). Nonetheless, although
States moved away from Blackstone's treatment of suicide, courts continued
to condemn it as a grave public wrong. See, e.g., Bigelow v. Berkshire
Life Ins. Co., 93 U. S. 284, 286 (1876) (suicide is "an act of criminal
self-destruction"); Von Holden v. Chapman, 87 App. Div. 2d 66, 70-71,
450 N. Y. S. 2d 623, 626-627 (1982); Blackwood v. Jones, 111 Fla. 528,
532, 149 So. 600, 601 (1933) ("No sophistry is tolerated . . . which
seek[s] to justify self-destruction as commendable or even a matter of
personal right").
[20] That suicide remained a grievous, though nonfelonious, wrong is
confirmed by the fact that colonial and early state legislatures and courts
did not retreat from prohibiting assisting suicide. Swift, in his early
19th century treatise on the laws of Connecticut, stated that "[i]f
one counsels another to commit suicide, and the other by reason of the
advice kills himself, the advisor is guilty of murder as principal."
2 Z. Swift, A Digest of the Laws of the State of Connecticut 270 (1823).
This was the well established common-law view, see In re Joseph G., 34
Cal. 3d 429, 434-435, 667 P. 2d 1176, 1179 (1983); Commonwealth v. Mink,
123 Mass. 422, 428 (1877) ("`Now if the murder of one's self is felony,
the accessory is equally guilty as if he had aided and abetted in the
murder'") (quoting Chief Justice Parker's charge to the jury in Commonwealth
v. Bowen, 13 Mass. 356 (1816)), as was the similar principle that the
consent of a homicide victim is "wholly immaterial to the guilt of
the person who cause[d] [his death]," 3 J. Stephen, A History of
the Criminal Law of England 16 (1883); see 1 F. Wharton, Criminal Law
Section(s) 451-452 (9th ed. 1885); Martin v. Commonwealth, 184 Va. 1009,
1018-1019, 37 S. E. 2d 43, 47 (1946) (" `The right to life and to
personal security is not only sacred in the estimation of the common law,
but it is inalienable' "). And the prohibitions against assisting
suicide never contained exceptions for those who were near death. Rather,
"[t]he life of those to whom life ha[d] become a burden-of those
who [were] hopelessly diseased or fatally wounded-nay, even the lives
of criminals condemned to death, [were] under the protection of law, equally
as the lives of those who [were] in the full tide of life's enjoyment,
and anxious to continue to live." Blackburn v. State, 23 Ohio St.
146, 163 (1872); see Bowen, supra, at 360 (prisoner who persuaded another
to commit suicide could be tried for murder, even though victim was scheduled
shortly to be executed).
[21] The earliest American statute explicitly to outlaw assisting suicide
was enacted in New York in 1828, Act of Dec. 10, 1828, ch. 20, Section(s)
4, 1828 N. Y. Laws 19 (codified at 2 N. Y. Rev. Stat. pt. 4, ch. 1, tit.
2, art. 1, Section(s) 7, p. 661 (1829)), and many of the new States and
Territories followed New York's example. Marzen 73-74. Between 1857 and
1865, a New York commission led by Dudley Field drafted a criminal code
that prohibited "aiding" a suicide and, specifically, "furnish[ing]
another person with any deadly weapon or poisonous drug, knowing that
such person intends to use such weapon or drug in taking his own life."
Id., at 76-77. By the time the Fourteenth Amendment was ratified, it was
a crime in most States to assist a suicide. See Cruzan, supra, at 294-295
(Scalia, J., concurring). The Field Penal Code was adopted in the Dakota
Territory in 1877, in New York in 1881, and its language served as a model
for several other western States' statutes in the late 19th and early
20th centuries. Marzen 76-77, 205-206, 212-213. California, for example,
codified its assisted-suicide prohibition in 1874, using language similar
to the Field Code's. *fn11 In this century, the Model Penal Code also
prohibited "aiding" suicide, prompting many States to enact
or revise their assisted-suicide bans. *fn12 The Code's drafters observed
that "the interests in the sanctity of life that are represented
by the criminal homicide laws are threatened by one who expresses a willingness
to participate in taking the life of another, even though the act may
be accomplished with the consent, or at the request, of the suicide victim."
American Law Institute, Model Penal Code Section(s) 210.5, Comment 5,
p. 100 (Official Draft and Revised Comments 1980).
[22] Though deeply rooted, the States' assisted-suicide bans have in
recent years been reexamined and, generally, reaffirmed. Because of advances
in medicine and technology, Americans today are increasingly likely to
die in institutions, from chronic illnesses. President's Comm'n for the
Study of Ethical Problems in Medicine and Biomedical and Behavioral Research,
Deciding to Forego Life-Sustaining Treatment 16-18 (1983). Public concern
and democratic action are therefore sharply focused on how best to protect
dignity and independence at the end of life, with the result that there
have been many significant changes in state laws and in the attitudes
these laws reflect. Many States, for example, now permit "living
wills," surrogate health-care decision-making, and the withdrawal
or refusal of life-sustaining medical treatment. See Vacco v. Quill, post,
at 9-11; 79 F. 3d, at 818-820; People v. Kevorkian, 447 Mich. 436, 478-480,
and nn. 53-56, 527 N. W. 2d 714, 731-732, and nn. 53-56 (1994). At the
same time, however, voters and legislators continue for the most part
to reaffirm their States' prohibitions on assisting suicide.
[23] The Washington statute at issue in this case, Wash. Rev. Code Section(s)
9A.36.060 (1994), was enacted in 1975 as part of a revision of that State's
criminal code. Four years later, Washington passed its Natural Death Act,
which specifically stated that the "withholding or withdrawal of
life-sustaining treatment . . . shall not, for any purpose, constitute
a suicide" and that "[n]othing in this chapter shall be construed
to condone, authorize, or approve mercy killing . . . ." Natural
Death Act, 1979 Wash. Laws, ch. 112, Section(s) 8(1), p. 11 (codified
at Wash. Rev. Code Section(s) 70.122.070(1), 70.122.100 (1994)). In 1991,
Washington voters rejected a ballot initiative which, had it passed, would
have permitted a form of physician-assisted suicide. *fn13 Washington
then added a provision to the Natural Death Act expressly excluding physician-assisted
suicide. 1992 Wash. Laws, ch. 98, Section(s) 10; Wash. Rev. Code Section(s)
70.122.100 (1994).
[24] California voters rejected an assisted-suicide initiative similar
to Washington's in 1993. On the other hand, in 1994, voters in Oregon
enacted, also through ballot initiative, that State's "Death With
Dignity Act," which legalized physician-assisted suicide for competent,
terminally ill adults. *fn14 Since the Oregon vote, many proposals to
legalize assisted-suicide have been and continue to be introduced in the
States' legislatures, but none has been enacted. *fn15 And just last year,
Iowa and Rhode Island joined the overwhelming majority of States explicitly
prohibiting assisted suicide. See Iowa Code Ann. Section(s) 707A.2, 707A.3
(Supp. 1997); R. I. Gen. Laws Section(s) 11-60-1, 11-60-3 (Supp. 1996).
Also, on April 30, 1997, President Clinton signed the Federal Assisted
Suicide Funding Restriction Act of 1997, which prohibits the use of federal
funds in support of physician-assisted suicide. Pub. L. 105-12, 111 Stat.
23 (codified at 42 U. S. C. Section(s) 14401 et seq). *fn16
[25] Thus, the States are currently engaged in serious, thoughtful examinations
of physician-assisted suicide and other similar issues. For example, New
York State's Task Force on Life and the Law-an ongoing, blue-ribbon commission
composed of doctors, ethicists, lawyers, religious leaders, and interested
laymen-was convened in 1984 and commissioned with "a broad mandate
to recommend public policy on issues raised by medical advances."
New York Task Force vii. Over the past decade, the Task Force has recommended
laws relating to end-of-life decisions, surrogate pregnancy, and organ
donation. Id., at 118-119. After studying physician-assisted suicide,
however, the Task Force unanimously concluded that "[l]egalizing
assisted suicide and euthanasia would pose profound risks to many individuals
who are ill and vulnerable. . . . [T]he potential dangers of this dramatic
change in public policy would outweigh any benefit that might be achieved."
Id., at 120.
[26] Attitudes toward suicide itself have changed since Bracton, but
our laws have consistently condemned, and continue to prohibit, assisting
suicide. Despite changes in medical technology and notwithstanding an
increased emphasis on the importance of end-of-life decisionmaking, we
have not retreated from this prohibition. Against this backdrop of history,
tradition, and practice, we now turn to respondents' constitutional claim.
II.
[27] The Due Process Clause guarantees more than fair process, and the
"liberty" it protects includes more than the absence of physical
restraint. Collins v. Harker Heights, 503 U. S. 115, 125 (1992) (Due Process
Clause "protects individual liberty against `certain government actions
regardless of the fairness of the procedures used to implement them' ")
(quoting Daniels v. Williams, 474 U. S. 327, 331 (1986)). The Clause also
provides heightened protection against government interference with certain
fundamental rights and liberty interests. Reno v. Flores, 507 U. S. 292,
301-302 (1993); Casey, 505 U. S., at 851. In a long line of cases, we
have held that, in addition to the specific freedoms protected by the
Bill of Rights, the "liberty" specially protected by the Due
Process Clause includes the rights to marry, Loving v. Virginia, 388 U.
S. 1 (1967); to have children, Skinner v. Oklahoma ex rel. Williamson,
316 U. S. 535 (1942); to direct the education and upbringing of one's
children, Meyer v. Nebraska, 262 U. S. 390 (1923); Pierce v. Society of
Sisters, 268 U. S. 510 (1925); to marital privacy, Griswold v. Connecticut,
381 U. S. 479 (1965); to use contraception, ibid; Eisenstadt v. Baird,
405 U. S. 438 (1972); to bodily integrity, Rochin v. California, 342 U.
S. 165 (1952), and to abortion, Casey, supra. We have also assumed, and
strongly suggested, that the Due Process Clause protects the traditional
right to refuse unwanted lifesaving medical treatment. Cruzan, 497 U.
S., at 278-279.
[28] But we "ha[ve] always been reluctant to expand the concept
of substantive due process because guideposts for responsible decisionmaking
in this unchartered area are scarce and open-ended." Collins, 503
U. S., at 125. By extending constitutional protection to an asserted right
or liberty interest, we, to a great extent, place the matter outside the
arena of public debate and legislative action. We must therefore "exercise
the utmost care whenever we are asked to break new ground in this field,"
ibid, lest the liberty protected by the Due Process Clause be subtly transformed
into the policy preferences of the members of this Court, Moore, 431 U.
S., at 502 (plurality opinion).
[29] Our established method of substantive-due-process analysis has two
primary features: First, we have regularly observed that the Due Process
Clause specially protects those fundamental rights and liberties which
are, objectively, "deeply rooted in this Nation's history and tradition,"
id., at 503 (plurality opinion); Snyder v. Massachusetts, 291 U. S. 97,
105 (1934) ("so rooted in the traditions and conscience of our people
as to be ranked as fundamental"), and "implicit in the concept
of ordered liberty," such that "neither liberty nor justice
would exist if they were sacrificed," Palko v. Connecticut, 302 U.
S. 319, 325, 326 (1937). Second, we have required in substantive-due-process
cases a "careful description" of the asserted fundamental liberty
interest. Flores, supra, at 302; Collins, supra, at 125; Cruzan, supra,
at 277-278. Our Nation's history, legal traditions, and practices thus
provide the crucial "guideposts for responsible decisionmaking,"
Collins, supra, at 125, that direct and restrain our exposition of the
Due Process Clause. As we stated recently in Flores, the Fourteenth Amendment
"forbids the government to infringe . . . `fundamental' liberty interests
at all, no matter what process is provided, unless the infringement is
narrowly tailored to serve a compelling state interest." 507 U. S.,
at 302.
[30] Justice Souter, relying on Justice Harlan's dissenting opinion in
Poe v. Ullman, would largely abandon this restrained methodology, and
instead ask "whether [Washington's] statute sets up one of those
`arbitrary impositions' or `purposeless restraints' at odds with the Due
Process Clause of the Fourteenth Amendment," post, at 1 (quoting
Poe, 367 U. S. 497, 543 (1961) (Harlan, J., dissenting)). *fn17 In our
view, however, the development of this Court's substantive-due-process
jurisprudence, described briefly above, supra, at 15, has been a process
whereby the outlines of the "liberty" specially protected by
the Fourteenth Amendment-never fully clarified, to be sure, and perhaps
not capable of being fully clarified-have at least been carefully refined
by concrete examples involving fundamental rights found to be deeply rooted
in our legal tradition. This approach tends to rein in the subjective
elements that are necessarily present in due-process judicial review.
In addition, by establishing a threshold requirement-that a challenged
state action implicate a fundamental right-before requiring more than
a reasonable relation to a legitimate state interest to justify the action,
it avoids the need for complex balancing of competing interests in every
case.
[31] Turning to the claim at issue here, the Court of Appeals stated
that "[p]roperly analyzed, the first issue to be resolved is whether
there is a liberty interest in determining the time and manner of one's
death," 79 F. 3d, at 801, or, in other words, "[i]s there a
right to die?," id., at 799. Similarly, respondents assert a "liberty
to choose how to die" and a right to "control of one's final
days," Brief for Respondents 7, and describe the asserted liberty
as "the right to choose a humane, dignified death," id., at
15, and "the liberty to shape death," id., at 18. As noted above,
we have a tradition of carefully formulating the interest at stake in
substantive-due-process cases. For example, although Cruzan is often described
as a "right to die" case, see 79 F. 3d, at 799; post, at 9 (Stevens,
J., concurring in judgment) (Cruzan recognized "the more specific
interest in making decisions about how to confront an imminent death"),
we were, in fact, more precise: we assumed that the Constitution granted
competent persons a "constitutionally protected right to refuse lifesaving
hydration and nutrition." Cruzan, 497 U. S., at 279; id., at 287
(O'Connor, J., concurring) ("[A] liberty interest in refusing unwanted
medical treatment may be inferred from our prior decisions"). The
Washington statute at issue in this case prohibits "aid[ing] another
person to attempt suicide," Wash. Rev. Code Section(s) 9A.36.060(1)
(1994), and, thus, the question before us is whether the "liberty"
specially protected by the Due Process Clause includes a right to commit
suicide which itself includes a right to assistance in doing so. *fn18
[32] We now inquire whether this asserted right has any place in our
Nation's traditions. Here, as discussed above, supra, at 4-15, we are
confronted with a consistent and almost universal tradition that has long
rejected the asserted right, and continues explicitly to reject it today,
even for terminally ill, mentally competent adults. To hold for respondents,
we would have to reverse centuries of legal doctrine and practice, and
strike down the considered policy choice of almost every State. See Jackman
v. Rosenbaum Co., 260 U. S. 22, 31 (1922) ("If a thing has been practiced
for two hundred years by common consent, it will need a strong case for
the Fourteenth Amendment to affect it"); Flores, 507 U. S., at 303
("The mere novelty of such a claim is reason enough to doubt that
`substantive due process' sustains it").
[33] Respondents contend, however, that the liberty interest they assert
is consistent with this Court's substantive-due-process line of cases,
if not with this Nation's history and practice. Pointing to Casey and
Cruzan, respondents read our jurisprudence in this area as reflecting
a general tradition of "self-sovereignty," Brief of Respondents
12, and as teaching that the "liberty" protected by the Due
Process Clause includes "basic and intimate exercises of personal
autonomy," id., at 10; see Casey, 505 U. S., at 847 ("It is
a promise of the Constitution that there is a realm of personal liberty
which the government may not enter"). According to respondents, our
liberty jurisprudence, and the broad, individualistic principles it reflects,
protects the "liberty of competent, terminally ill adults to make
end-of-life decisions free of undue government interference." Brief
for Respondents 10. The question presented in this case, however, is whether
the protections of the Due Process Clause include a right to commit suicide
with another's assistance. With this "careful description" of
respondents' claim in mind, we turn to Casey and Cruzan.
[34] In Cruzan, we considered whether Nancy Beth Cruzan, who had been
severely injured in an automobile accident and was in a persistive vegetative
state, "ha[d] a right under the United States Constitution which
would require the hospital to withdraw life-sustaining treatment"
at her parents' request. Cruzan, 497 U. S., at 269. We began with the
observation that "[a]t common law, even the touching of one person
by another without consent and without legal justification was a battery."
Ibid. We then discussed the related rule that "informed consent is
generally required for medical treatment." Ibid. After reviewing
a long line of relevant state cases, we concluded that "the common-law
doctrine of informed consent is viewed as generally encompassing the right
of a competent individual to refuse medical treatment." Id., at 277.
Next, we reviewed our own cases on the subject, and stated that "[t]he
principle that a competent person has a constitutionally protected liberty
interest in refusing unwanted medical treatment may be inferred from our
prior decisions." Id., at 278. Therefore, "for purposes of [that]
case, we assume[d] that the United States Constitution would grant a competent
person a constitutionally protected right to refuse lifesaving hydration
and nutrition." Id., at 279; see id., at 287 (O'Connor, J., concurring).
We concluded that, notwithstanding this right, the Constitution permitted
Missouri to require clear and convincing evidence of an incompetent patient's
wishes concerning the withdrawal of life-sustaining treatment. Id., at
280-281.
[35] Respondents contend that in Cruzan we "acknowledged that competent,
dying persons have the right to direct the removal of life-sustaining
medical treatment and thus hasten death," Brief for Respondents 23,
and that "the constitutional principle behind recognizing the patient's
liberty to direct the withdrawal of artificial life support applies at
least as strongly to the choice to hasten impending death by consuming
lethal medication," id., at 26. Similarly, the Court of Appeals concluded
that "Cruzan, by recognizing a liberty interest that includes the
refusal of artificial provision of life-sustaining food and water, necessarily
recognize[d] a liberty interest in hastening one's own death." 79
F. 3d, at 816.
[36] The right assumed in Cruzan, however, was not simply deduced from
abstract concepts of personal autonomy. Given the common-law rule that
forced medication was a battery, and the long legal tradition protecting
the decision to refuse unwanted medical treatment, our assumption was
entirely consistent with this Nation's history and constitutional traditions.
The decision to commit suicide with the assistance of another may be just
as personal and profound as the decision to refuse unwanted medical treatment,
but it has never enjoyed similar legal protection. Indeed, the two acts
are widely and reasonably regarded as quite distinct. See Quill v. Vacco,
post, at 5-13. In Cruzan itself, we recognized that most States outlawed
assisted suicide-and even more do today-and we certainly gave no intimation
that the right to refuse unwanted medical treatment could be somehow transmuted
into a right to assistance in committing suicide. 497 U. S., at 280.
[37] Respondents also rely on Casey. There, the Court's opinion concluded
that "the essential holding of Roe v. Wade should be retained and
once again reaffirmed." Casey, 505 U. S., at 846. We held, first,
that a woman has a right, before her fetus is viable, to an abortion "without
undue interference from the State"; second, that States may restrict
post-viability abortions, so long as exceptions are made to protect a
woman's life and health; and third, that the State has legitimate interests
throughout a pregnancy in protecting the health of the woman and the life
of the unborn child. Ibid. In reaching this conclusion, the opinion discussed
in some detail this Court's substantive-due-process tradition of interpreting
the Due Process Clause to protect certain fundamental rights and "personal
decisions relating to marriage, procreation, contraception, family relationships,
child rearing, and education," and noted that many of those rights
and liberties "involv[e] the most intimate and personal choices a
person may make in a lifetime." Id., at 851.
[38] The Court of Appeals, like the District Court, found Casey "`highly
instructive'" and "`almost prescriptive'" for determining
"`what liberty interest may inhere in a terminally ill person's choice
to commit suicide'":
[39] "Like the decision of whether or not to have an abortion, the
decision how and when to die is one of `the most intimate and personal
choices a person may make in a lifetime,' a choice `central to personal
dignity and autonomy.' " 79 F. 3d, at 813-814.
[40] Similarly, respondents emphasize the statement in Casey that:
[41] "At the heart of liberty is the right to define one's own concept
of existence, of meaning, of the universe, and of the mystery of human
life. Beliefs about these matters could not define the attributes of personhood
were they formed under compulsion of the State." Casey, 505 U. S.,
at 851.
[42] Brief for Respondents 12. By choosing this language, the Court's
opinion in Casey described, in a general way and in light of our prior
cases, those personal activities and decisions that this Court has identified
as so deeply rooted in our history and traditions, or so fundamental to
our concept of constitutionally ordered liberty, that they are protected
by the Fourteenth Amendment. *fn19 The opinion moved from the recognition
that liberty necessarily includes freedom of conscience and belief about
ultimate considerations to the observation that "though the abortion
decision may originate within the zone of conscience and belief, it is
more than a philosophic exercise." Casey, 505 U. S., at 852 (emphasis
added). That many of the rights and liberties protected by the Due Process
Clause sound in personal autonomy does not warrant the sweeping conclusion
that any and all important, intimate, and personal decisions are so protected,
San Antonio Independent School Dist. v. Rodriguez, 411 U. S. 1, 33-35
(1973), and Casey did not suggest otherwise.
[43] The history of the law's treatment of assisted suicide in this country
has been and continues to be one of the rejection of nearly all efforts
to permit it. That being the case, our decisions lead us to conclude that
the asserted "right" to assistance in committing suicide is
not a fundamental liberty interest protected by the Due Process Clause.
The Constitution also requires, however, that Washington's assisted-suicide
ban be rationally related to legitimate government interests. See Heller
v. Doe, 509 U. S. 312, 319-320 (1993); Flores, 507 U. S., at 305. This
requirement is unquestionably met here. As the court below recognized,
79 F. 3d, at 816-817, *fn20 Washington's assisted-suicide ban implicates
a number of state interests. *fn21 See 49 F. 3d, at 592-593; Brief for
State of California et al. as Amici Curiae 26-29; Brief for United States
as Amicus Curiae 16-27.
[44] First, Washington has an "unqualified interest in the preservation
of human life." Cruzan, 497 U. S., at 282. The State's prohibition
on assisted suicide, like all homicide laws, both reflects and advances
its commitment to this interest. See id., at 280; Model Penal Code Section(s)
210.5, Comment 5, at 100 ("[T]he interests in the sanctity of life
that are represented by the criminal homicide laws are threatened by one
who expresses a willingness to participate in taking the life of another").
*fn22 This interest is symbolic and aspirational as well as practical:
[45] "While suicide is no longer prohibited or penalized, the ban
against assisted suicide and euthanasia shores up the notion of limits
in human relationships. It reflects the gravity with which we view the
decision to take one's own life or the life of another, and our reluctance
to encourage or promote these decisions." New York Task Force 131-132.
[46] Respondents admit that "[t]he State has a real interest in
preserving the lives of those who can still contribute to society and
enjoy life." Brief for Respondents 35, n. 23. The Court of Appeals
also recognized Washington's interest in protecting life, but held that
the "weight" of this interest depends on the "medical condition
and the wishes of the person whose life is at stake." 79 F. 3d, at
817. Washington, however, has rejected this sliding-scale approach and,
through its assisted-suicide ban, insists that all persons' lives, from
beginning to end, regardless of physical or mental condition, are under
the full protection of the law. See United States v. Rutherford, 442 U.
S. 544, 558 (1979) (". . . Congress could reasonably have determined
to protect the terminally ill, no less than other patients, from the vast
range of self-styled panaceas that inventive minds can devise").
As we have previously affirmed, the States "may properly decline
to make judgments about the `quality' of life that a particular individual
may enjoy," Cruzan, 497 U. S., at 282. This remains true, as Cruzan
makes clear, even for those who are near death.
[47] Relatedly, all admit that suicide is a serious public-health problem,
especially among persons in otherwise vulnerable groups. See Washington
State Dept. of Health, Annual Summary of Vital Statistics 1991, pp. 29-30
(Oct. 1992) (suicide is a leading cause of death in Washington of those
between the ages of 14 and 54); New York Task Force 10, 23-33 (suicide
rate in the general population is about one percent, and suicide is especially
prevalent among the young and the elderly). The State has an interest
in preventing suicide, and in studying, identifying, and treating its
causes. See 79 F. 3d, at 820; id., at 854 (Beezer, J., dissenting) ("The
state recognizes suicide as a manifestation of medical and psychological
anguish"); Marzen 107-146.
[48] Those who attempt suicide-terminally ill or not-often suffer from
depression or other mental disorders. See New York Task Force 13-22, 126-128
(more than 95% of those who commit suicide had a major psychiatric illness
at the time of death; among the terminally ill, uncontrolled pain is a
"risk factor" because it contributes to depression); Physician-Assisted
Suicide and Euthanasia in the Netherlands: A Report of Chairman Charles
T. Canady to the Subcommittee on the Constitution of the House Committee
on the Judiciary, 104th Cong., 2d Sess., 10-11 (Comm. Print 1996); cf.
Back, Wallace, Starks, & Pearlman, Physician-Assisted Suicide and
Euthanasia in Washington State, 275 JAMA 919, 924 (1996) ("[I]ntolerable
physical symptoms are not the reason most patients request physician-assisted
suicide or euthanasia"). Research indicates, however, that many people
who request physician-assisted suicide withdraw that request if their
depression and pain are treated. H. Hendin, Seduced by Death: Doctors,
Patients and the Dutch Cure 24-25 (1997) (suicidal, terminally ill patients
"usually respond well to treatment for depressive illness and pain
medication and are then grateful to be alive"); New York Task Force
177-178. The New York Task Force, however, expressed its concern that,
because depression is difficult to diagnose, physicians and medical professionals
often fail to respond adequately to seriously ill patients' needs. Id.,
at 175. Thus, legal physician-assisted suicide could make it more difficult
for the State to protect depressed or mentally ill persons, or those who
are suffering from untreated pain, from suicidal impulses.
[49] The State also has an interest in protecting the integrity and ethics
of the medical profession. In contrast to the Court of Appeals' conclusion
that "the integrity of the medical profession would [not] be threatened
in any way by [physician-assisted suicide]," 79 F. 3d, at 827, the
American Medical Association, like many other medical and physicians'
groups, has concluded that "[p]hysician-assisted suicide is fundamentally
incompatible with the physician's role as healer." American Medical
Association, Code of Ethics Section(s) 2.211 (1994); see Council on Ethical
and Judicial Affairs, Decisions Near the End of Life, 267 JAMA 2229, 2233
(1992) ("[T]he societal risks of involving physicians in medical
interventions to cause patients' deaths is too great"); New York
Task Force 103-109 (discussing physicians' views). And physician-assisted
suicide could, it is argued, undermine the trust that is essential to
the doctor-patient relationship by blurring the time-honored line between
healing and harming. Assisted Suicide in the United States, Hearing before
the Subcommittee on the Constitution of the House Committee on the Judiciary,
104th Cong., 2d Sess., 355-356 (1996) (testimony of Dr. Leon R. Kass)
("The patient's trust in the doctor's whole-hearted devotion to his
best interests will be hard to sustain").
[50] Next, the State has an interest in protecting vulnerable groups-including
the poor, the elderly, and disabled persons-from abuse, neglect, and mistakes.
The Court of Appeals dismissed the State's concern that disadvantaged
persons might be pressured into physician-assisted suicide as "ludicrous
on its face." 79 F. 3d, at 825. We have recognized, however, the
real risk of subtle coercion and undue influence in end-of-life situations.
Cruzan, 497 U. S., at 281. Similarly, the New York Task Force warned that
"[l]egalizing physician-assisted suicide would pose profound risks
to many individuals who are ill and vulnerable. . . . The risk of harm
is greatest for the many individuals in our society whose autonomy and
well-being are already compromised by poverty, lack of access to good
medical care, advanced age, or membership in a stigmatized social group."
New York Task Force 120; see Compassion in Dying, 49 F. 3d, at 593 ("[A]n
insidious bias against the handicapped-again coupled with a cost-saving
mentality-makes them especially in need of Washington's statutory protection").
If physician-assisted suicide were permitted, many might resort to it
to spare their families the substantial financial burden of end-of-life
health-care costs.
[51] The State's interest here goes beyond protecting the vulnerable
from coercion; it extends to protecting disabled and terminally ill people
from prejudice, negative and inaccurate stereotypes, and "societal
indifference." 49 F. 3d, at 592. The State's assisted-suicide ban
reflects and reinforces its policy that the lives of terminally ill, disabled,
and elderly people must be no less valued than the lives of the young
and healthy, and that a seriously disabled person's suicidal impulses
should be interpreted and treated the same way as anyone else's. See New
York Task Force 101-102; Physician-Assisted Suicide and Euthanasia in
the Netherlands: A Report of Chairman Charles T. Canady, at 9, 20 (discussing
prejudice toward the disabled and the negative messages euthanasia and
assisted suicide send to handicapped patients).
[52] Finally, the State may fear that permitting assisted suicide will
start it down the path to voluntary and perhaps even involuntary euthanasia.
The Court of Appeals struck down Washington's assisted-suicide ban only
"as applied to competent, terminally ill adults who wish to hasten
their deaths by obtaining medication prescribed by their doctors."
79 F. 3d, at 838. Washington insists, however, that the impact of the
court's decision will not and cannot be so limited. Brief for Petitioners
44-47. If suicide is protected as a matter of constitutional right, it
is argued, "every man and woman in the United States must enjoy it."
Compassion in Dying, 49 F. 3d, at 591; see Kevorkian, 447 Mich., at 470,
n. 41, 527 N. W. 2d, at 727-728, n. 41. The Court of Appeals' decision,
and its expansive reasoning, provide ample support for the State's concerns.
The court noted, for example, that the "decision of a duly appointed
surrogate decision maker is for all legal purposes the decision of the
patient himself," 79 F. 3d, at 832, n. 120; that "in some instances,
the patient may be unable to self-administer the drugs and . . . administration
by the physician . . . may be the only way the patient may be able to
receive them," id., at 831; and that not only physicians, but also
family members and loved ones, will inevitably participate in assisting
suicide. Id., at 838, n. 140. Thus, it turns out that what is couched
as a limited right to "physician-assisted suicide" is likely,
in effect, a much broader license, which could prove extremely difficult
to police and contain. *fn23 Washington's ban on assisting suicide prevents
such erosion.
[53] This concern is further supported by evidence about the practice
of euthanasia in the Netherlands. The Dutch government's own study revealed
that in 1990, there were 2,300 cases of voluntary euthanasia (defined
as "the deliberate termination of another's life at his request"),
400 cases of assisted suicide, and more than 1,000 cases of euthanasia
without an explicit request. In addition to these latter 1,000 cases,
the study found an additional 4,941 cases where physicians administered
lethal morphine overdoses without the patients' explicit consent. Physician-Assisted
Suicide and Euthanasia in the Netherlands: A Report of Chairman Charles
T. Canady, at 12-13 (citing Dutch study). This study suggests that, despite
the existence of various reporting procedures, euthanasia in the Netherlands
has not been limited to competent, terminally ill adults who are enduring
physical suffering, and that regulation of the practice may not have prevented
abuses in cases involving vulnerable persons, including severely disabled
neonates and elderly persons suffering from dementia. Id., at 16-21; see
generally C. Gomez, Regulating Death: Euthanasia and the Case of the Netherlands
(1991); H. Hendin, Seduced By Death: Doctors, Patients, and the Dutch
Cure (1997). The New York Task Force, citing the Dutch experience, observed
that "assisted suicide and euthanasia are closely linked," New
York Task Force 145, and concluded that the "risk of . . . abuse
is neither speculative nor distant," id., at 134. Washington, like
most other States, reasonably ensures against this risk by banning, rather
than regulating, assisting suicide. See United States v. 12 200-ft Reels
of Super 8MM Film, 413 U. S. 123, 127 (1973) ("Each step, when taken,
appear[s] a reasonable step in relation to that which preceded it, although
the aggregate or end result is one that would never have been seriously
considered in the first instance").
[54] We need not weigh exactingly the relative strengths of these various
interests. They are unquestionably important and legitimate, and Washington's
ban on assisted suicide is at least reasonably related to their promotion
and protection. We therefore hold that Wash. Rev. Code Section(s) 9A.36.060(1)
(1994) does not violate the Fourteenth Amendment, either on its face or
"as applied to competent, terminally ill adults who wish to hasten
their deaths by obtaining medication prescribed by their doctors."
79 F. 3d, at 838. *fn24
* * *
[55] Throughout the Nation, Americans are engaged in an earnest and profound
debate about the morality, legality, and practicality of physician-assisted
suicide. Our holding permits this debate to continue, as it should in
a democratic society. The decision of the en banc Court of Appeals is
reversed, and the case is remanded for further proceedings consistent
with this opinion.
[56] It is so ordered.
[57] Justice O'Connor, concurring. *fn25
[58] Death will be different for each of us. For many, the last days
will be spent in physical pain and perhaps the despair that accompanies
physical deterioration and a loss of control of basic bodily and mental
functions. Some will seek medication to alleviate that pain and other
symptoms.
[59] The Court frames the issue in this case as whether the Due Process
Clause of the Constitution protects a "right to commit suicide which
itself includes a right to assistance in doing so," ante, at 18,
and concludes that our Nation's history, legal traditions, and practices
do not support the existence of such a right. I join the Court's opinions
because I agree that there is no generalized right to "commit suicide."
But respondents urge us to address the narrower question whether a mentally
competent person who is experiencing great suffering has a constitutionally
cognizable interest in controlling the circumstances of his or her imminent
death. I see no need to reach that question in the context of the facial
challenges to the New York and Washington laws at issue here. See ante,
at 18 ("The Washington statute at issue in this case prohibits `aid[ing]
another person to attempt suicide,'. . . and, thus, the question before
us is whether the `liberty' specially protected by the Due Process Clause
includes a right to commit suicide which itself includes a right to assistance
in doing so"). The parties and amici agree that in these States a
patient who is suffering from a terminal illness and who is experiencing
great pain has no legal barriers to obtaining medication, from qualified
physicians, to alleviate that suffering, even to the point of causing
unconsciousness and hastening death. See Wash. Rev. Code Section(s) 70.122.010
(1994); Brief for Petitioners in No. 95-1858, p. 15, n. 9; Brief for Respondents
in No. 95-1858, p. 15. In this light, even assuming that we would recognize
such an interest, I agree that the State's interests in protecting those
who are not truly competent or facing imminent death, or those whose decisions
to hasten death would not truly be voluntary, are sufficiently weighty
to justify a prohibition against physician-assisted suicide. Ante, at
27-30; post, at 11 (Stevens, J., concurring in judgments); post, at 33-39
(Souter, J., concurring in judgment).
[60] Every one of us at some point may be affected by our own or a family
member's terminal illness. There is no reason to think the democratic
process will not strike the proper balance between the interests of terminally
ill, mentally competent individuals who would seek to end their suffering
and the State's interests in protecting those who might seek to end life
mistakenly or under pressure. As the Court recognizes, States are presently
undertaking extensive and serious evaluation of physician-assisted suicide
and other related issues. Ante, at 11, 12-13; see post, at 36-39 (Souter,
J., concurring in judgment). In such circumstances, "the . . . challenging
task of crafting appropriate procedures for safeguarding . . . liberty
interests is entrusted to the `laboratory' of the States . . . in the
first instance." Cruzan v. Director, Mo. Dept. of Health, 497 U.
S. 261, 292 (1990) (O'Connor, J., concurring) (citing New State Ice Co.
v. Liebmann, 285 U. S. 262, 311 (1932)).
[61] In sum, there is no need to address the question whether suffering
patients have a constitutionally cognizable interest in obtaining relief
from the suffering that they may experience in the last days of their
lives. There is no dispute that dying patients in Washington and New York
can obtain palliative care, even when doing so would hasten their deaths.
The difficulty in defining terminal illness and the risk that a dying
patient's request for assistance in ending his or her life might not be
truly voluntary justifies the prohibitions on assisted suicide we uphold
here.
[62] Justice Stevens, concurring in the judgments.
[63] The Court ends its opinion with the important observation that our
holding today is fully consistent with a continuation of the vigorous
debate about the "morality, legality, and practicality of physician-assisted
suicide" in a democratic society. Ante, at 32. I write separately
to make it clear that there is also room for further debate about the
limits that the Constitution places on the power of the States to punish
the practice.
I.
[64] The morality, legality, and practicality of capital punishment have
been the subject of debate for many years. In 1976, this Court upheld
the constitutionality of the practice in cases coming to us from Georgia,
*fn26 Florida *fn27, and Texas. *fn28 In those cases we concluded that
a State does have the power to place a lesser value on some lives than
on others; there is no absolute requirement that a State treat all human
life as having an equal right to preservation. Because the state legislatures
had sufficiently narrowed the category of lives that the State could terminate,
and had enacted special procedures to ensure that the defendant belonged
in that limited category, we concluded that the statutes were not unconstitutional
on their face. In later cases coming to us from each of those States,
however, we found that some applications of the statutes were unconstitutional.
*fn29
[65] Today, the Court decides that Washington's statute prohibiting assisted
suicide is not invalid "on its face," that is to say, in all
or most cases in which it might be applied. *fn30 That holding, however,
does not foreclose the possibility that some applications of the statute
might well be invalid.
[66] As originally filed, this case presented a challenge to the Washington
statute on its face and as it applied to three terminally ill, mentally
competent patients and to four physicians who treat terminally ill patients.
After the District Court issued its opinion holding that the statute placed
an undue burden on the right to commit physician-assisted suicide, see
Compassion in Dying v. Washington, 850 F. Supp. 1454, 1462, 1465 (WD Wash.
1994), the three patients died. Although the Court of Appeals considered
the constitutionality of the statute "as applied to the prescription
of life-ending medication for use by terminally ill, competent adult patients
who wish to hasten their deaths," Compassion in Dying v. Washington,
79 F. 3d 790, 798 (CA9 1996), the court did not have before it any individual
plaintiff seeking to hasten her death or any doctor who was threatened
with prosecution for assisting in the suicide of a particular patient;
its analysis and eventual holding that the statute was unconstitutional
was not limited to a particular set of plaintiffs before it.
[67] The appropriate standard to be applied in cases making facial challenges
to state statutes has been the subject of debate within this Court. See
Janklow v. Planned Parenthood, Sioux Falls Clinic, 517 U. S. ___ (1996).
Upholding the validity of the federal Bail Reform Act of 1984, the Court
stated in United States v. Salerno, 481 U. S. 739 (1987), that a "facial
challenge to a legislative Act is, of course, the most difficult challenge
to mount successfully, since the challenger must establish that no set
of circumstances exists under which the Act would be valid." Id.,
at 745. *fn31 I do not believe the Court has ever actually applied such
a strict standard, *fn32 even in Salerno itself, and the Court does not
appear to apply Salerno here. Nevertheless, the Court does conceive of
respondents' claim as a facial challenge-addressing not the application
of the statute to a particular set of plaintiffs before it, but the constitutionality
of the statute's categorical prohibition against "aid[ing] another
person to attempt suicide." Ante, at 18 (internal quotation marks
omitted) (citing Wash. Rev. Code Section(s) 9A.36.060(1) (1994)). Accordingly,
the Court requires the plaintiffs to show that the interest in liberty
protected by the Fourteenth Amendment "includes a right to commit
suicide which itself includes a right to assistance in doing so."
Ante, at 18.
[68] History and tradition provide ample support for refusing to recognize
an open-ended constitutional right to commit suicide. Much more than the
State's paternalistic interest in protecting the individual from the irrevocable
consequences of an ill-advised decision motivated by temporary concerns
is at stake. There is truth in John Donne's observation that "No
man is an island." *fn33 The State has an interest in preserving
and fostering the benefits that every human being may provide to the community-a
community that thrives on the exchange of ideas, expressions of affection,
shared memories and humorous incidents as well as on the material contributions
that its members create and support. The value to others of a person's
life is far too precious to allow the individual to claim a constitutional
entitlement to complete autonomy in making a decision to end that life.
Thus, I fully agree with the Court that the "liberty" protected
by the Due Process Clause does not include a categorical "right to
commit suicide which itself includes a right to assistance in doing so."
Ante, at 18.
[69] But just as our conclusion that capital punishment is not always
unconstitutional did not preclude later decisions holding that it is sometimes
impermissibly cruel, so is it equally clear that a decision upholding
a general statutory prohibition of assisted suicide does not mean that
every possible application of the statute would be valid. A State, like
Washington, that has authorized the death penalty and thereby has concluded
that the sanctity of human life does not require that it always be preserved,
must acknowledge that there are situations in which an interest in hastening
death is legitimate. Indeed, not only is that interest sometimes legitimate,
I am also convinced that there are times when it is entitled to constitutional
protection.
II.
[70] In Cruzan v. Director, Mo. Dept. of Health, 497 U. S. 261 (1990),
the Court assumed that the interest in liberty protected by the Fourteenth
Amendment encompassed the right of a terminally ill patient to direct
the withdrawal of life-sustaining treatment. As the Court correctly observes
today, that assumption "was not simply deduced from abstract concepts
of personal autonomy." Ante, at 21. Instead, it was supported by
the common-law tradition protecting the individual's general right to
refuse unwanted medical treatment. Ibid. We have recognized, however,
that this common-law right to refuse treatment is neither absolute nor
always sufficiently weighty to overcome valid countervailing state interests.
As Justice Brennan pointed out in his Cruzan dissent, we have upheld legislation
imposing punishment on persons refusing to be vaccinated, 497 U. S., at
312, n. 12, citing Jacobson v. Massachusetts, 197 U. S. 11, 26-27 (1905),
and as Justice Scalia pointed out in his concurrence, the State ordinarily
has the right to interfere with an attempt to commit suicide by, for example,
forcibly placing a bandage on a self-inflicted wound to stop the flow
of blood. 497 U. S., at 298. In most cases, the individual's constitutionally
protected interest in his or her own physical autonomy, including the
right to refuse unwanted medical treatment, will give way to the State's
interest in preserving human life.
[71] Cruzan, however, was not the normal case. Given the irreversible
nature of her illness and the progressive character of her suffering,
*fn34 Nancy Cruzan's interest in refusing medical care was incidental
to her more basic interest in controlling the manner and timing of her
death. In finding that her best interests would be served by cutting off
the nourishment that kept her alive, the trial court did more than simply
vindicate Cruzan's interest in refusing medical treatment; the court,
in essence, authorized affirmative conduct that would hasten her death.
When this Court reviewed the case and upheld Missouri's requirement that
there be clear and convincing evidence establishing Nancy Cruzan's intent
to have life-sustaining nourishment withdrawn, it made two important assumptions:
(1) that there was a "liberty interest" in refusing unwanted
treatment protected by the Due Process Clause; and (2) that this liberty
interest did not "end the inquiry" because it might be outweighed
by relevant state interests. Id., at 279. I agree with both of those assumptions,
but I insist that the source of Nancy Cruzan's right to refuse treatment
was not just a common-law rule. Rather, this right is an aspect of a far
broader and more basic concept of freedom that is even older than the
common law. *fn35 This freedom embraces, not merely a person's right to
refuse a particular kind of unwanted treatment, but also her interest
in dignity, and in determining the character of the memories that will
survive long after her death. *fn36 In recognizing that the State's interests
did not outweigh Nancy Cruzan's liberty interest in refusing medical treatment,
Cruzan rested not simply on the common-law right to refuse medical treatment,
but-at least implicitly-on the even more fundamental right to make this
"deeply personal decision," 497 U. S., at 289 (O'Connor, J.,
concurring).
[72] Thus, the common-law right to protection from battery, which included
the right to refuse medical treatment in most circumstances, did not mark
"the outer limits of the substantive sphere of liberty" that
supported the Cruzan family's decision to hasten Nancy's death. Planned
Parenthood of Southeastern Pa. v. Casey, 505 U. S. 833, 848 (1992). Those
limits have never been precisely defined. They are generally identified
by the importance and character of the decision confronted by the individual,
Whalen v. Roe, 429 U. S. 589, 599-600, n. 26 (1977). Whatever the outer
limits of the concept may be, it definitely includes protection for matters
"central to personal dignity and autonomy." Casey, 505 U. S.,
at 851. It includes,
[73] "the individual's right to make certain unusually important
decisions that will affect his own, or his family's, destiny. The Court
has referred to such decisions as implicating `basic values,' as being
`fundamental,' and as being dignified by history and tradition. The character
of the Court's language in these cases brings to mind the origins of the
American heritage of freedom-the abiding interest in individual liberty
that makes certain state intrusions on the citizen's right to decide how
he will live his own life intolerable." Fitzgerald v. Porter Memorial
Hospital, 523 F. 2d 716, 719-720 (CA7 1975) (footnotes omitted), cert.
denied, 425 U. S. 916 (1976).
[74] The Cruzan case demonstrated that some state intrusions on the right
to decide how death will be encountered are also intolerable. The now-deceased
plaintiffs in this action may in fact have had a liberty interest even
stronger than Nancy Cruzan's because, not only were they terminally ill,
they were suffering constant and severe pain. Avoiding intolerable pain
and the indignity of living one's final days incapacitated and in agony
is certainly "[a]t the heart of [the] liberty . . . to define one's
own concept of existence, of meaning, of the universe, and of the mystery
of human life." Casey, 505 U. S., at 851.
[75] While I agree with the Court that Cruzan does not decide the issue
presented by these cases, Cruzan did give recognition, not just to vague,
unbridled notions of autonomy, but to the more specific interest in making
decisions about how to confront an imminent death. Although there is no
absolute right to physician-assisted suicide, Cruzan makes it clear that
some individuals who no longer have the option of deciding whether to
live or to die because they are already on the threshold of death have
a constitutionally protected interest that may outweigh the State's interest
in preserving life at all costs. The liberty interest at stake in a case
like this differs from, and is stronger than, both the common-law right
to refuse medical treatment and the unbridled interest in deciding whether
to live or die. It is an interest in deciding how, rather than whether,
a critical threshold shall be crossed.
III.
[76] The state interests supporting a general rule banning the practice
of physician-assisted suicide do not have the same force in all cases.
First and foremost of these interests is the " `unqualified interest
in the preservation of human life,' " ante, at 24, (quoting Cruzan,
497 U. S., at 282,) which is equated with " `the sanctity of life,'
" ante, at 25, (quoting the American Law Institute, Model Penal Code
Section(s) 210.5, Comment 5, p. 100 (Official Draft and Revised Comments
1980)). That interest not only justifies-it commands-maximum protection
of every individual's interest in remaining alive, which in turn commands
the same protection for decisions about whether to commence or to terminate
life-support systems or to administer pain medication that may hasten
death. Properly viewed, however, this interest is not a collective interest
that should always outweigh the interests of a person who because of pain,
incapacity, or sedation finds her life intolerable, but rather, an aspect
of individual freedom.
[77] Many terminally ill people find their lives meaningful even if filled
with pain or dependence on others. Some find value in living through suffering;
some have an abiding desire to witness particular events in their families'
lives; many believe it a sin to hasten death. Individuals of different
religious faiths make different judgments and choices about whether to
live on under such circumstances. There are those who will want to continue
aggressive treatment; those who would prefer terminal sedation; and those
who will seek withdrawal from life-support systems and death by gradual
starvation and dehydration. Although as a general matter the State's interest
in the contributions each person may make to society outweighs the person's
interest in ending her life, this interest does not have the same force
for a terminally ill patient faced not with the choice of whether to live,
only of how to die. Allowing the individual, rather than the State, to
make judgments " `about the "quality" of life that a particular
individual may enjoy.' " ante, at 25 (quoting Cruzan, 497 U. S.,
at 282), does not mean that the lives of terminally-ill, disabled people
have less value than the lives of those who are healthy, see ante, at
28. Rather, it gives proper recognition to the individual's interest in
choosing a final chapter that accords with her life story, rather than
one that demeans her values and poisons memories of her. See Brief for
Bioethicists as Amici Curiae 11; see also R. Dworkin, Life's Dominion
213 (1993) ("Whether it is in someone's best interests that his life
end in one way rather than another depends on so much else that is special
about him-about the shape and character of his life and his own sense
of his integrity and critical interests-that no uniform collective decision
can possibly hope to serve everyone even decently").
[78] Similarly, the State's legitimate interests in preventing suicide,
protecting the vulnerable from coercion and abuse, and preventing euthanasia
are less significant in this context. I agree that the State has a compelling
interest in preventing persons from committing suicide because of depression,
or coercion by third parties. But the State's legitimate interest in preventing
abuse does not apply to an individual who is not victimized by abuse,
who is not suffering from depression, and who makes a rational and voluntary
decision to seek assistance in dying. Although, as the New York Task Force
report discusses, diagnosing depression and other mental illness is not
always easy, mental health workers and other professionals expert in working
with dying patients can help patients cope with depression and pain, and
help patients assess their options. See Brief for Washington State Psychological
Association et al. as Amici Curiae 8-10.
[79] Relatedly, the State and amici express the concern that patients
whose physical pain is inadequately treated will be more likely to request
assisted suicide. Encouraging the development and ensuring the availability
of adequate pain treatment is of utmost importance; palliative care, however,
cannot alleviate all pain and suffering. See Orentlicher, Legalization
of Physician Assisted Suicide: A Very Modest Revolution, 38 Boston College
L. Rev. (Galley, p. 8) (1997) ("Greater use of palliative care would
reduce the demand for assisted suicide, but it will not eliminate [it]");
see also Brief for Coalition of Hospice Professionals as Amici Curiae
8 (citing studies showing that "[a]s death becomes more imminent,
pain and suffering become progressively more difficult to treat").
An individual adequately informed of the care alternatives thus might
make a rational choice for assisted suicide. For such an individual, the
State's interest in preventing potential abuse and mistake is only minimally
implicated.
[80] The final major interest asserted by the State is its interest in
preserving the traditional integrity of the medical profession. The fear
is that a rule permitting physicians to assist in suicide is inconsistent
with the perception that they serve their patients solely as healers.
But for some patients, it would be a physician's refusal to dispense medication
to ease their suffering and make their death tolerable and dignified that
would be inconsistent with the healing role See Block & Billings,
Patient Request to Hasten Death, 154 Archives Internal Med. 2039, 2045
(1994) (A doctor's refusal to hasten death "may be experienced by
the [dying] patient as an abandonment, a rejection, or an expression of
inappropriate paternalistic authority"). For doctors who have long-standing
relationships with their patients, who have given their patients advice
on alternative treatments, who are attentive to their patient's individualized
needs, and who are knowledgeable about pain symptom management and palliative
care options, see Quill, Death and Dignity, A Case of Individualized Decision
Making, 324 New England J. of Med. 691-694 (1991), heeding a patient's
desire to assist in her suicide would not serve to harm the physician-patient
relationship. Furthermore, because physicians are already involved in
making decisions that hasten the death of terminally ill patients-through
termination of life support, withholding of medical treatment, and terminal
sedation-there is in fact significant tension between the traditional
view of the physician's role and the actual practice in a growing number
of cases. *fn37
[81] As the New York State Task Force on Life and the Law recognized,
a State's prohibition of assisted suicide is justified by the fact that
the " `ideal' " case in which "patients would be screened
for depression and offered treatment, effective pain medication would
be available, and all patients would have a supportive committed family
and doctor" is not the usual case. New York State Task Force on Life
and the Law, When Death Is Sought: Assisted Suicide and Euthanasia in
the Medical Context 120 (May 1994). Although, as the Court concludes today,
these potential harms are sufficient to support the State's general public
policy against assisted suicide, they will not always outweigh the individual
liberty interest of a particular patient. Unlike the Court of Appeals,
I would not say as a categorical matter that these state interests are
invalid as to the entire class of terminally ill, mentally competent patients.
I do not, however, foreclose the possibility that an individual plaintiff
seeking to hasten her death, or a doctor whose assistance was sought,
could prevail in a more particularized challenge. Future cases will determine
whether such a challenge may succeed.
IV.
[82] In New York, a doctor must respect a competent person's decision
to refuse or to discontinue medical treatment even though death will thereby
ensue, but the same doctor would be guilty of a felony if she provided
her patient assistance in committing suicide. *fn38 Today we hold that
the Equal Protection Clause is not violated by the resulting disparate
treatment of two classes of terminally ill people who may have the same
interest in hastening death. I agree that the distinction between permitting
death to ensue from an underlying fatal disease and causing it to occur
by the administration of medication or other means provides a constitutionally
sufficient basis for the State's classification. *fn39 Unlike the Court,
however, see Vacco, ante, at 6-7, I am not persuaded that in all cases
there will in fact be a significant difference between the intent of the
physicians, the patients or the families in the two situations.
[83] There may be little distinction between the intent of a terminally-ill
patient who decides to remove her life-support and one who seeks the assistance
of a doctor in ending her life; in both situations, the patient is seeking
to hasten a certain, impending death. The doctor's intent might also be
the same in prescribing lethal medication as it is in terminating life
support. A doctor who fails to administer medical treatment to one who
is dying from a disease could be doing so with an intent to harm or kill
that patient. Conversely, a doctor who prescribes lethal medication does
not necessarily intend the patient's death-rather that doctor may seek
simply to ease the patient's suffering and to comply with her wishes.
The illusory character of any differences in intent or causation is confirmed
by the fact that the American Medical Association unequivocally endorses
the practice of terminal sedation-the administration of sufficient dosages
of pain-killing medication to terminally ill patients to protect them
from excruciating pain even when it is clear that the time of death will
be advanced. The purpose of terminal sedation is to ease the suffering
of the patient and comply with her wishes, and the actual cause of death
is the administration of heavy doses of lethal sedatives. This same intent
and causation may exist when a doctor complies with a patient's request
for lethal medication to hasten her death. *fn40
[84] Thus, although the differences the majority notes in causation and
intent between terminating life-support and assisting in suicide support
the Court's rejection of the respondents' facial challenge, these distinctions
may be inapplicable to particular terminally ill patients and their doctors.
Our holding today in Vacco v. Quill that the Equal Protection Clause is
not violated by New York's classification, just
like our holding in Washington v. Glucksberg that the Washington statute
is not invalid on its face, does not foreclose the possibility that some
applications of the New York statute may impose an intolerable intrusion
on the patient's freedom.
[85] There remains room for vigorous debate about the outcome of particular
cases that are not necessarily resolved by the opinions announced today.
How such cases may be decided will depend on their specific facts. In
my judgment, however, it is clear that the so-called "unqualified
interest in the preservation of human life," Cruzan, 497 U. S., at
282, Glucksberg, ante, at 24, is not itself sufficient to outweigh the
interest in liberty that may justify the only possible means of preserving
a dying patient's dignity and alleviating her intolerable suffering.
[86] Justice Souter, concurring in the judgment.
[87] Three terminally ill individuals and four physicians who sometimes
treat terminally ill patients brought this challenge to the Washington
statute making it a crime "knowingly . . . [to] ai[d] another person
to attempt suicide," Wash. Rev. Code Section(s) 9A.36.060 (1994),
claiming on behalf of both patients and physicians that it would violate
substantive due process to enforce the statute against a doctor who acceded
to a dying patient's request for a drug to be taken by the patient to
commit suicide. The question is whether the statute sets up one of those
"arbitrary impositions" or "purposeless restraints"
at odds with the Due Process Clause of the Fourteenth Amendment. Poe v.
Ullman, 367 U. S. 497, 543 (1961) (Harlan, J., dissenting). I conclude
that the statute's application to the doctors has not been shown to be
unconstitutional, but I write separately to give my reasons for analyzing
the substantive due process claims as I do, and for rejecting this one.
I.
[88] Although the terminally ill original parties have died during the
pendency of this case, the four physicians who remain as respondents here
*fn41 continue to request declaratory and injunctive relief for their
own benefit in discharging their obligations to other dying patients who
request their help. *fn42 See, e.g., Southern Pacific Terminal Co. v.
ICC, 219 U. S. 498, 515 (1911) (question was capable of repetition yet
evading review). The case reaches us on an order granting summary judgment,
and we must take as true the undisputed allegations that each of the patients
was mentally competent and terminally ill, and that each made a knowing
and voluntary choice to ask a doctor to prescribe "medications .
. . to be self-administered for the purpose of hastening . . . death."
Complaint Para(s) 2.3. The State does not dispute that each faced a passage
to death more agonizing both mentally and physically, and more protracted
over time, than death by suicide with a physician's help, or that each
would have chosen such a suicide for the sake of personal dignity, apart
even from relief from pain. Each doctor in this case claims to encounter
patients like the original plaintiffs who have died, that is, mentally
competent, terminally ill, and seeking medical help in "the voluntary
self-termination of life." Id., at Para(s) 2.5-2.8. While there may
be no unanimity on the physician's professional obligation in such circumstances,
I accept here respondents' representation that providing such patients
with prescriptions for drugs that go beyond pain relief to hasten death
would, in these circumstances, be consistent with standards of medical
practice. Hence, I take it to be true, as respondents say, that the Washington
statute prevents the exercise of a physician's "best professional
judgment to prescribe medications to [such] patients in dosages that would
enable them to act to hasten their own deaths." Id., at Para(s) 2.6;
see also App. 35-37, 49-51, 55-57, 73-75.
[89] In their brief to this Court, the doctors claim not that they ought
to have a right generally to hasten patients' imminent deaths, but only
to help patients who have made "personal decisions regarding their
own bodies, medical care, and, fundamentally, the future course of their
lives," Brief for Respondents 12, and who have concluded responsibly
and with substantial justification that the brief and anguished remainders
of their lives have lost virtually all value to them. Respondents fully
embrace the notion that the State must be free to impose reasonable regulations
on such physician assistance to ensure that the patients they assist are
indeed among the competent and terminally ill and that each has made a
free and informed choice in seeking to obtain and use a fatal drug. Complaint
Para(s) 3.2; App. 28-41.
[90] In response, the State argues that the interest asserted by the
doctors is beyond constitutional recognition because it has no deep roots
in our history and traditions. Brief for Petitioners 21-25. But even aside
from that, without disputing that the patients here were competent and
terminally ill, the State insists that recognizing the legitimacy of doctors'
assistance of their patients as contemplated here would entail a number
of adverse consequences that the Washington Legislature was entitled to
forestall. The nub of this part of the State's argument is not that such
patients are constitutionally undeserving of relief on their own account,
but that any attempt to confine a right of physician assistance to the
circumstances presented by these doctors is likely to fail. Id., at 34-35,
44-47.
[91] First, the State argues that the right could not be confined to
the terminally ill. Even assuming a fixed definition of that term, the
State observes that it is not always possible to say with certainty how
long a person may live. Id., at 34. It asserts that "[t]here is no
principled basis on which [the right] can be limited to the prescription
of medication for terminally ill patients to administer to themselves"
when the right's justifying principle is as broad as " `merciful
termination of suffering.' " Id., at 45 (citing Y. Kamisar, Are Laws
Against Assisted Suicide Unconstitutional?, Hastings Center Report 32,
36-37 (May-June 1993)). Second, the State argues that the right could
not be confined to the mentally competent, observing that a person's competence
cannot always be assessed with certainty, Brief for Petitioners 34, and
suggesting further that no principled distinction is possible between
a competent patient acting independently and a patient acting through
a duly appointed and competent surrogate, id., at 46. Next, according
to the State, such a right might entail a right to or at least merge in
practice into "other forms of life-ending assistance," such
as euthanasia. Id., at 46-47. Finally, the State believes that a right
to physician assistance could not easily be distinguished from a right
to assistance from others, such as friends, family, and other health-care
workers. Id., at 47. The State thus argues that recognition of the substantive
due process right at issue here would jeopardize the lives of others outside
the class defined by the doctors' claim, creating risks of irresponsible
suicides and euthanasia, whose dangers are concededly within the State's
authority to address.
II.
[92] When the physicians claim that the Washington law deprives them
of a right falling within the scope of liberty that the Fourteenth Amendment
guarantees against denial without due process of law, *fn43 they are not
claiming some sort of procedural defect in the process through which the
statute has been enacted or is administered. Their claim, rather, is that
the State has no substantively adequate justification for barring the
assistance sought by the patient and sought to be offered by the physician.
Thus, we are dealing with a claim to one of those rights sometimes described
as rights of substantive due process and sometimes as unenumerated rights,
in view of the breadth and indeterminacy of the "due process"
serving as the claim's textual basis. The doctors accordingly arouse the
skepticism of those who find the Due Process Clause an unduly vague or
oxymoronic warrant for judicial review of substantive state law, just
as they also invoke two centuries of American constitutional practice
in recognizing unenumerated, substantive limits on governmental action.
Although this practice has neither rested on any single textual basis
nor expressed a consistent theory (or, before Poe v. Ullman, a much articulated
one), a brief overview of its history is instructive on two counts. The
persistence of substantive due process in our cases points to the legitimacy
of the modern justification for such judicial review found in Justice
Harlan's dissent in Poe, *fn44 on which I will dwell further on, while
the acknowledged failures of some of these cases point with caution to
the difficulty raised by the present claim.
[93] Before the ratification of the Fourteenth Amendment, substantive
constitutional review resting on a theory of unenumerated rights occurred
largely in the state courts applying state constitutions that commonly
contained either due process clauses like that of the Fifth Amendment
(and later the Fourteenth) or the textual antecedents of such clauses,
repeating Magna Carta's guarantee of "the law of the land."
*fn45 On the basis of such clauses, or of general principles untethered
to specific constitutional language, state courts evaluated the constitutionality
of a wide range of statutes.
[94] Thus, a Connecticut court approved a statute legitimating a class
of previous illegitimate marriages, as falling within the terms of the
"social compact," while making clear its power to review constitutionality
in those terms. Goshen v. Stonington, 4 Conn. 209, 225-226 (1822). In
the same period, a specialized court of equity, created under a Tennessee
statute solely to hear cases brought by the state bank against its debtors,
found its own authorization unconstitutional as "partial" legislation
violating the state constitution's "law of the land" clause.
Bank of the State v. Cooper, 2 Yerg. 599, 602-608 (Tenn. 1831) (Green,
J.); id., at 613-615 (Peck, J.); id., at 618-623 (Kennedy, J.). And the
middle of the 19th century brought the famous Wynehamer case, invalidating
a statute purporting to render possession of liquor immediately illegal
except when kept for narrow, specified purposes, the state court finding
the statute inconsistent with the state's due process clause. Wynehamer
v. People, 13 N. Y. 378, 486-487 (1856). The statute was deemed an excessive
threat to the "fundamental rights of the citizen" to property.
Id., at 398 (Comstock, J.). See generally, E. Corwin, Liberty Against
Government 58-115 (1948) (discussing substantive due process in the state
courts before the Civil War); T. Cooley, Constitutional Limitations *85-*129,
*351-*397.
[95] Even in this early period, however, this Court anticipated the developments
that would presage both the Civil War and the ratification of the Fourteenth
Amendment, by making it clear on several occasions that it too had no
doubt of the judiciary's power to strike down legislation that conflicted
with important but unenumerated principles of American government. In
most such instances, after declaring its power to invalidate what it might
find inconsistent with rights of liberty and property, the Court nevertheless
went on to uphold the legislative acts under review. See, e.g., Wilkinson
v. Leland, 2 Pet. 627, 656-661 (1829); Calder v. Bull, 3 Dall. 386, 386-395
(1798) (opinion of Chase, J.); see also Corfield v. Coryell, 6 F. Cas.
546, 550-552 (No. 3,230) (1823). But in Fletcher v. Peck, 6 Cranch 87
(1810), the Court went further. It struck down an act of the Georgia legislature
that purported to rescind a sale of public land ab initio and reclaim
title for the State, and so deprive subsequent, good-faith purchasers
of property conveyed by the original grantees. The Court rested the invalidation
on alternative sources of authority: the specific prohibitions against
bills of attainder, ex post facto laws, laws impairing contracts in Article
I, Section(s) 10 of the Constitution; and "general principles which
are common to our free institutions," by which Chief Justice Marshall
meant that a simple deprivation of property by the State could not be
an authentically "legislative" act. Fletcher, 6 Cranch, at 135-139.
[96] Fletcher was not, though, the most telling early example of such
review. For its most salient instance in this Court before the adoption
of the Fourteenth Amendment was, of course, the case that the Amendment
would in due course overturn, Dred Scott v. Sandford, 19 How. 393 (1857).
Unlike Fletcher, Dred Scott was textually based on a due process clause
(in the Fifth Amendment, applicable to the national government), and it
was in reliance on that clause's protection of property that the Court
invalidated the Missouri Compromise. 19 How., at 449-452. This substantive
protection of an owner's property in a slave taken to the territories
was traced to the absence of any enumerated power to affect that property
granted to the Congress by Article I of the Constitution, id., at 451-452,
the implication being that the government had no legitimate interest that
could support the earlier congressional compromise. The ensuing judgment
of history needs no recounting here.
[97] After the ratification of the Fourteenth Amendment, with its guarantee
of due process protection against the States, interpretation of the words
"liberty" and "property" as used in due process clauses
became a sustained enterprise, with the Court generally describing the
due process criterion in converse terms of reasonableness or arbitrariness.
That standard is fairly traceable to Justice Bradley's dissent in the
Slaughter-House Cases, 16 Wall. 36 (1873), in which he said that a person's
right to choose a calling was an element of liberty (as the calling, once
chosen, was an aspect of property) and declared that the liberty and property
protected by due process are not truly recognized if such rights may be
"arbitrarily assailed," id., at 116. *fn46 After that, opinions
comparable to those that preceded Dred Scott expressed willingness to
review legislative action for consistency with the Due Process Clause
even as they upheld the laws in question. See, e.g., Bartemeyer v. Iowa,
18 Wall. 129, 133-135 (1874); Munn v. Illinois, 94 U. S. 113, 123-135
(1877); Railroad Comm'n Cases, 116 U. S. 307, 331 (1886); Mugler v. Kansas,
123 U. S. 623, 659-670 (1887). See generally Corwin, Liberty Against Government,
at 121-136 (surveying the Court's early Fourteenth Amendment cases and
finding little dissent from the general principle that the Due Process
Clause authorized judicial review of substantive statutes).
[98] The theory became serious, however, beginning with Allgeyer v. Louisiana,
165 U. S. 578 (1897), where the Court invalidated a Louisiana statute
for excessive interference with Fourteenth Amendment liberty to contract,
id., at 588-593, and offered a substantive interpretation of "liberty,"
that in the aftermath of the so-called Lochner Era has been scaled back
in some respects, but expanded in others, and never repudiated in principle.
The Court said that Fourteenth Amendment liberty includes "the right
of the citizen to be free in the enjoyment of all his faculties; to be
free to use them in all lawful ways; to live and work where he will; to
earn his livelihood by any lawful calling; to pursue any livelihood or
avocation; and for that purpose to enter into all contracts which may
be proper, necessary and essential to his carrying out to a successful
conclusion the purposes above mentioned." Id., at 589. "[W]e
do not intend to hold that in no such case can the State exercise its
police power," the Court added, but "[w]hen and how far such
power may be legitimately exercised with regard to these subjects must
be left for determination to each case as it arises." Id., at 590.
[99] Although this principle was unobjectionable, what followed for a
season was, in the realm of economic legislation, the echo of Dred Scott.
Allgeyer was succeeded within a decade by Lochner v. New York, 198 U.
S. 45 (1905), and the era to which that case gave its name, famous now
for striking down as arbitrary various sorts of economic regulations that
post-New Deal courts have uniformly thought constitutionally sound. Compare,
e.g., id., at 62 (finding New York's maximum-hours law for bakers "unreasonable
and entirely arbitrary") and Adkins v. Children's Hospital of D.
C., 261 U. S. 525, 559 (1923) (holding a minimum wage law "so clearly
the product of a naked, arbitrary exercise of power that it cannot be
allowed to stand under the Constitution of the United States") with
West Coast Hotel Co. v. Parrish, 300 U. S. 379, 391 (1937) (overruling
Adkins and approving a minimum-wage law on the principle that "regulation
which is reasonable in relation to its subject and is adopted in the interests
of the community is due process"). As the parentheticals here suggest,
while the cases in the Lochner line routinely invoked a correct standard
of constitutional arbitrariness review, they harbored the spirit of Dred
Scott in their absolutist implementation of the standard they espoused.
[100] Even before the deviant economic due process cases had been repudiated,
however, the more durable precursors of modern substantive due process
were reaffirming this Court's obligation to conduct arbitrariness review,
beginning with Meyer v. Nebraska, 262 U. S. 390 (1923). Without referring
to any specific guarantee of the Bill of Rights, the Court invoked precedents
from the Slaughter-House Cases through Adkins to declare that the Fourteenth
Amendment protected "the right of the individual to contract, to
engage in any of the common occupations of life, to acquire useful knowledge,
to marry, establish a home and bring up children, to worship God according
to the dictates of his own conscience, and generally to enjoy those privileges
long recognized at common law as essential to the orderly pursuit of happiness
by free men." Id., at 399. The Court then held that the same Fourteenth
Amendment liberty included a teacher's right to teach and the rights of
parents to direct their children's education without unreasonable interference
by the States, id., at 400, with the result that Nebraska's prohibition
on the teaching of foreign languages in the lower grades was, "arbitrary
and without reasonable relation to any end within the competency of the
State," id., at 403. See also Pierce v. Society of Sisters, 268 U.
S. 510, 534-536 (1925) (finding that a statute that all but outlawed private
schools lacked any "reasonable relation to some purpose within the
competency of the State"); Palko v. Connecticut, 302 U. S. 319, 327-238
(1937) ("even in the field of substantive rights and duties the legislative
judgment, if oppressive and arbitrary, may be overridden by the courts";
"Is that [injury] to which the statute has subjected [the appellant]
a hardship so acute and shocking that our polity will not endure it? Does
it violate those fundamental principles of liberty and justice which lie
at the base of all our civil and political institutions?") (citation
and internal quotation marks omitted).
[101] After Meyer and Pierce, two further opinions took the major steps
that lead to the modern law. The first was not even in a due process case
but one about equal protection, Skinner v. Oklahoma ex rel. Williamson,
316 U. S. 535 (1942), where the Court emphasized the "fundamental"
nature of individual choice about procreation and so foreshadowed not
only the later prominence of procreation as a subject of liberty protection,
but the corresponding standard of "strict scrutiny," in this
Court's Fourteenth Amendment law. See id., at 541. Skinner, that is, added
decisions regarding procreation to the list of liberties recognized in
Meyer and Pierce and loosely suggested, as a gloss on their standard of
arbitrariness, a judicial obligation to scrutinize any impingement on
such an important interest with heightened care. In so doing, it suggested
a point that Justice Harlan would develop, that the kind and degree of
justification that a sensitive judge would demand of a State would depend
on the importance of the interest being asserted by the individual. Poe,
367 U. S., at 543.
[102] The second major opinion leading to the modern doctrine was Justice
Harlan's Poe dissent just cited, the conclusion of which was adopted in
Griswold v. Connecticut, 381 U. S. 478 (1965), and the authority of which
was acknowledged in Planned Parenthood of Southeastern Pa. v. Casey, 505
U. S. 833 (1992). See also n. 4, supra. The dissent is important for three
things that point to our responsibilities today. The first is Justice
Harlan's respect for the tradition of substantive due process review itself,
and his acknowledgement of the Judiciary's obligation to carry it on.
For two centuries American courts, and for much of that time this Court,
have thought it necessary to provide some degree of review over the substantive
content of legislation under constitutional standards of textual breadth.
The obligation was understood before Dred Scott and has continued after
the repudiation of Lochner's progeny, most notably on the subjects of
segregation in public education, Bolling v. Sharpe, 347 U. S. 497, 500
(1954), interracial marriage, Loving v. Virginia, 388 U. S. 1, 12 (1967),
marital privacy and contraception, Carey v. Population Services Int'l,
431 U. S. 678, 684-691 (1977), Griswold v. Connecticut, supra, at 481-486,
abortion, Planned Parenthood of Southeastern Pa. v. Casey, 505 U. S. 833,
849, 869-879 (1992) (joint opinion of O'Connor, Kennedy, and Souter, JJ.),
Roe v. Wade, 410 U. S. 113, 152-166 (1973), personal control of medical
treatment, Cruzan v. Director, Mo. Dept. of Health, 497 U. S. 261, 287-289
(1990) (O'Connor, J., concurring); id., at 302 (Brennan, J., dissenting);
id., at 331 (Stevens, J., dissenting); see also id., at 278 (majority
opinion), and physical confinement, Foucha v. Louisiana, 504 U. S. 71,
80-83 (1992). This enduring tradition of American constitutional practice
is, in Justice Harlan's view, nothing more than what is required by the
judicial authority and obligation to construe constitutional text and
review legislation for conformity to that text. See Marbury v. Madison,
1 Cranch 137 (1803). Like many judges who preceded him and many who followed,
he found it impossible to construe the text of due process without recognizing
substantive, and not merely procedural, limitations. "Were due process
merely a procedural safeguard it would fail to reach those situations
where the deprivation of life, liberty or property was accomplished by
legislation which by operating in the future could, given even the fairest
possible procedure in application to individuals, nevertheless destroy
the enjoyment of all three." Poe, 367 U. S., at 541. *fn47 The text
of the Due Process Clause thus imposes nothing less than an obligation
to give substantive content to the words "liberty" and "due
process of law."
[103] Following the first point of the Poe dissent, on the necessity
to engage in the sort of examination we conduct today, the dissent's second
and third implicitly address those cases, already noted, that are now
condemned with virtual unanimity as disastrous mistakes of substantive
due process review. The second of the dissent's lessons is a reminder
that the business of such review is not the identification of extratextual
absolutes but scrutiny of a legislative resolution (perhaps unconscious)
of clashing principles, each quite possibly worthy in and of itself, but
each to be weighed within the history of our values as a people. It is
a comparison of the relative strengths of opposing claims that informs
the judicial task, not a deduction from some first premise. Thus informed,
judicial review still has no warrant to substitute one reasonable resolution
of the contending positions for another, but authority to supplant the
balance already struck between the contenders only when it falls outside
the realm of the reasonable. Part III, below, deals with this second point,
and also with the dissent's third, which takes the form of an object lesson
in the explicit attention to detail that is no less essential to the intellectual
discipline of substantive due process review than an understanding of
the basic need to account for the two sides in the controversy and to
respect legislation within the zone of reasonableness.
III.
[104] My understanding of unenumerated rights in the wake of the Poe
dissent and subsequent cases avoids the absolutist failing of many older
cases without embracing the opposite pole of equating reasonableness with
past practice described at a very specific level. See Planned Parenthood
of Southeastern Pa. v. Casey, 505 U. S. 833, 847-849 (1992). That understanding
begins with a concept of "ordered liberty," Poe, 367 U. S.,
at 549 (Harlan, J.); see also Griswold, 381 U. S., at 500, comprising
a continuum of rights to be free from "arbitrary impositions and
purposeless restraints," Poe, 367 U. S., at 543 (Harlan, J., dissenting).
[105] "Due Process has not been reduced to any formula; its content
cannot be determined by reference to any code. The best that can be said
is that through the course of this Court's decisions it has represented
the balance which our Nation, built upon postulates of respect for the
liberty of the individual, has struck between that liberty and the demands
of organized society. If the supplying of content to this Constitutional
concept has of necessity been a rational process, it certainly has not
been one where judges have felt free to roam where unguided speculation
might take them. The balance of which I speak is the balance struck by
this country, having regard to what history teaches are the traditions
from which it developed as well as the traditions from which it broke.
That tradition is a living thing. A decision of this Court which radically
departs from it could not long survive, while a decision which builds
on what has survived is likely to be sound. No formula could serve as
a substitute, in this area, for judgment and restraint." Id., at
542.
[106] See also Moore v. East Cleveland, 431 U. S. 494, 503 (1977) (plurality
opinion of Powell, J.) ("Appropriate limits on substantive due process
come not from drawing arbitrary lines but rather from careful `respect
for the teachings of history [and] solid recognition of the basic values
that underlie our society' ") (quoting Griswold, 481 U. S., at 501
(Harlan, J., concurring)).
[107] After the Poe dissent, as before it, this enforceable concept of
liberty would bar statutory impositions even at relatively trivial levels
when governmental restraints are undeniably irrational as unsupported
by any imaginable rationale. See, e.g., United States v. Carolene Products
Co., 304 U. S. 144, 152 (1938) (economic legislation "not . . . unconstitutional
unless . . . facts . . . preclude the assumption that it rests upon some
rational basis"); see also Poe, 367 U. S., at 545, 548 (Harlan, J.,
dissenting) (referring to usual "presumption of constitutionality"
and ordinary test "going merely to the plausibility of [a statute's]
underlying rationale"). Such instances are suitably rare. The claims
of arbitrariness that mark almost all instances of unenumerated substantive
rights are those resting on "certain interests requir[ing] particularly
careful scrutiny of the state needs asserted to justify their abridgment.
Cf. Skinner v. Oklahoma [ex rel. Williamson, 316 U. S. 535 (1942)]; Bolling
v. Sharpe, [347 U. S. 497 (1954)]," id., at 543; that is, interests
in liberty sufficiently important to be judged "fundamental,"
id., at 548; see also id., at 541 (citing Corfield v. Coryell, 4 Wash.
C. C. 371, 380 (CC ED Pa. 1825)). In the face of an interest this powerful
a State may not rest on threshold rationality or a presumption of constitutionality,
but may prevail only on the ground of an interest sufficiently compelling
to place within the realm of the reasonable a refusal to recognize the
individual right asserted. Poe, supra, at 548 (Harlan, J., dissenting)
(an "enactment involv[ing] . . . a most fundamental aspect of `liberty'
. . . [is] subjec[t] to `strict scrutiny' ") (quoting Skinner v.
Oklahoma ex rel. Williamson, 316 U. S., at 541); *fn48 Reno v. Flores,
507 U. S. 292, 301-302 (1993) (reaffirming that due process "forbids
the government to infringe certain `fundamental' liberty interests . .
. unless the infringement is narrowly tailored to serve a compelling state
interest"). *fn49
[108] This approach calls for a court to assess the relative "weights"
or dignities of the contending interests, and to this extent the judicial
method is familiar to the common law. Common law method is subject, however,
to two important constraints in the hands of a court engaged in substantive
due process review. First, such a court is bound to confine the values
that it recognizes to those truly deserving constitutional stature, either
to those expressed in constitutional text, or those exemplified by "the
traditions from which [the Nation] developed," or revealed by contrast
with "the traditions from which it broke." Poe, 367 U. S., at
542 (Harlan, J., dissenting). " `We may not draw on our merely personal
and private notions and disregard the limits . . . derived from considerations
that are fused in the whole nature of our judicial process . . .[,] considerations
deeply rooted in reason and in the compelling traditions of the legal
profession.' " Id., at 544-545 (quoting Rochin v. California, 342
U. S. 165, 170-171 (1952)); see also Palko v. Connecticut, 302 U. S.,
at 325 (looking to " `principle[s] of justice so rooted in the traditions
and conscience of our people as to be ranked as fundamental' ") (quoting
Snyder v. Massachusetts, 291 U. S. 97, 105 (1934)).
[109] The second constraint, again, simply reflects the fact that constitutional
review, not judicial lawmaking, is a court's business here. The weighing
or valuing of contending interests in this sphere is only the first step,
forming the basis for determining whether the statute in question falls
inside or outside the zone of what is reasonable in the way it resolves
the conflict between the interests of state and individual. See, e.g.,
Poe, supra, at 553 (Harlan, J., dissenting); Youngberg v. Romeo, 457 U.
S. 307, 320-321 (1982). It is no justification for judicial intervention
merely to identify a reasonable resolution of contending values that differs
from the terms of the legislation under review. It is only when the legislation's
justifying principle, critically valued, is so far from being commensurate
with the individual interest as to be arbitrarily or pointlessly applied
that the statute must give way. Only if this standard points against the
statute can the individual claimant be said to have a constitutional right.
See Cruzan v. Director, Mo. Dept. of Health, 497 U. S., at 279 ("[D]etermining
that a person has a `liberty interest' under the Due Process Clause does
not end the inquiry; `whether [the individual's] constitutional rights
have been violated must be determined by balancing his liberty interests
against the relevant state interests' ") (quoting Youngberg v. Romeo,
supra, at 321). *fn50
[110] The Poe dissent thus reminds us of the nature of review for reasonableness
or arbitrariness and the limitations entailed by it. But the opinion cautions
against the repetition of past error in another way as well, more by its
example than by any particular statement of constitutional method: it
reminds us that the process of substantive review by reasoned judgment,
Poe, 367 U. S., at 542-544, is one of close criticism going to the details
of the opposing interests and to their relationships with the historically
recognized principles that lend them weight or value.
[111] Although the Poe dissent disclaims the possibility of any general
formula for due process analysis (beyond the basic analytic structure
just described), see id., at 542, 544, Justice Harlan of course assumed
that adjudication under the Due Process Clauses is like any other instance
of judgment dependent on common-law method, being more or less persuasive
according to the usual canons of critical discourse. See also Casey, 505
U. S., at 849 ("The inescapable fact is that adjudication of substantive
due process claims may call upon the Court in interpreting the Constitution
to exercise that same capacity which by tradition courts always have exercised:
reasoned judgment"). When identifying and assessing the competing
interests of liberty and authority, for example, the breadth of expression
that a litigant or a judge selects in stating the competing principles
will have much to do with the outcome and may be dispositive. As in any
process of rational argumentation, we recognize that when a generally
accepted principle is challenged, the broader the attack the less likely
it is to succeed. The principle's defenders will, indeed, often try to
characterize any challenge as just such a broadside, perhaps by couching
the defense as if a broadside attack had occurred. So the Court in Dred
Scott treated prohibition of slavery in the Territories as nothing less
than a general assault on the concept of property. See Dred Scott v. Sandford,
19 How., at 449-452.
[112] Just as results in substantive due process cases are tied to the
selections of statements of the competing interests, the acceptability
of the results is a function of the good reasons for the selections made.
It is here that the value of common-law method becomes apparent, for the
usual thinking of the common law is suspicious of the all-or-nothing analysis
that tends to produce legal petrification instead of an evolving boundary
between the domains of old principles. Common-law method tends to pay
respect instead to detail, seeking to understand old principles afresh
by new examples and new counterexamples. The "tradition is a living
thing," Poe, 367 U. S., at 542 (Harlan, J., dissenting), albeit one
that moves by moderate steps carefully taken. "The decision of an
apparently novel claim must depend on grounds which follow closely on
well-accepted principles and criteria. The new decision must take its
place in relation to what went before and further [cut] a channel for
what is to come." Id., at 544 (Harlan, J., dissenting) (internal
quotation marks omitted). Exact analysis and characterization of any due
process claim is critical to the method and to the result.
[113] So, in Poe, Justice Harlan viewed it as essential to the plaintiffs'
claimed right to use contraceptives that they sought to do so within the
privacy of the marital bedroom. This detail in fact served two crucial
and complementary functions, and provides a lesson for today. It rescued
the individuals' claim from a breadth that would have threatened all state
regulation of contraception or intimate relations; extramarital intimacy,
no matter how privately practiced, was outside the scope of the right
Justice Harlan would have recognized in that case. See id., at 552-553.
It was, moreover, this same restriction that allowed the interest to be
valued as an aspect of a broader liberty to be free from all unreasonable
intrusions into the privacy of the home and the family life within it,
a liberty exemplified in constitutional provisions such as the Third and
Fourth Amendments, in prior decisions of the Court involving unreasonable
intrusions into the home and family life, and in the then-prevailing status
of marriage as the sole lawful locus of intimate relations. Id., at 548,
551. *fn51 The individuals' interest was therefore at its peak in Poe,
because it was supported by a principle that distinguished of its own
force between areas in which government traditionally had regulated (sexual
relations outside of marriage) and those in which it had not (private
marital intimacies), and thus was broad enough to cover the claim at hand
without being so broad as to be shot-through by exceptions.
[114] On the other side of the balance, the State's interest in Poe was
not fairly characterized simply as preserving sexual morality, or doing
so by regulating contraceptive devices. Just as some of the earlier cases
went astray by speaking without nuance of individual interests in property
or autonomy to contract for labor, so the State's asserted interest in
Poe was not immune to distinctions turning (at least potentially) on the
precise purpose being pursued and the collateral consequences of the means
chosen, see id., at 547-548. It was assumed that the State might legitimately
enforce limits on the use of contraceptives through laws regulating divorce
and annulment, or even through its tax policy, ibid., but not necessarily
be justified in criminalizing the same practice in the marital bedroom,
which would entail the consequence of authorizing state enquiry into the
intimate relations of a married couple who chose to close their door,
id., at 548-549. See also Casey, 505 U. S., at 869 (strength of State's
interest in potential life varies depending on precise context and character
of regulation pursuing that interest).
[115] The same insistence on exactitude lies behind questions, in current
terminology, about the proper level of generality at which to analyze
claims and counter-claims, and the demand for fitness and proper tailoring
of a restrictive statute is just another way of testing the legitimacy
of the generality at which the government sets up its justification. *fn52
We may therefore classify Justice Harlan's example of proper analysis
in any of these ways: as applying concepts of normal critical reasoning,
as pointing to the need to attend to the levels of generality at which
countervailing interests are stated, or as examining the concrete application
of principles for fitness with their own ostensible justifications. But
whatever the categories in which we place the dissent's example, it stands
in marked contrast to earlier cases whose reasoning was marked by comparatively
less discrimination, and it points to the importance of evaluating the
claims of the parties now before us with comparable detail. For here we
are faced with an individual claim not to a right on the part of just
anyone to help anyone else commit suicide under any circumstances, but
to the right of a narrow class to help others also in a narrow class under
a set of limited circumstances. And the claimants are met with the State's
assertion, among others, that rights of such narrow scope cannot be recognized
without jeopardy to individuals whom the State may concededly protect
through its regulations.
IV.
A.
[116] Respondents claim that a patient facing imminent death, who anticipates
physical suffering and indignity, and is capable of responsible and voluntary
choice, should have a right to a physician's assistance in providing counsel
and drugs to be administered by the patient to end life promptly. Complaint
Para(s) 3.1. They accordingly claim that a physician must have the corresponding
right to provide such aid, contrary to the provisions of Wash. Rev. Code
Section(s) 9A.36.060 (1994). I do not understand the argument to rest
on any assumption that rights either to suicide or to assistance in committing
it are historically based as such. Respondents, rather, acknowledge the
prohibition of each historically, but rely on the fact that to a substantial
extent the State has repudiated that history. The result of this, respondents
say, is to open the door to claims of such a patient to be accorded one
of the options open to those with different, traditionally cognizable
claims to autonomy in deciding how their bodies and minds should be treated.
They seek the option to obtain the services of a physician to give them
the benefit of advice and medical help, which is said to enjoy a tradition
so strong and so devoid of specifically countervailing state concern that
denial of a physician's help in these circumstances is arbitrary when
physicians are generally free to advise and aid those who exercise other
rights to bodily autonomy.
[117] 1.
[118] The dominant western legal codes long condemned suicide and treated
either its attempt or successful accomplishment as a crime, the one subjecting
the individual to penalties, the other penalizing his survivors by designating
the suicide's property as forfeited to the government. See 4 W. Blackstone,
Commentaries *188-*189 (commenting that English law considered suicide
to be "ranked . . . among the highest crimes" and deemed persuading
another to commit suicide to be murder); see generally Marzen, O'Dowd,
Crone, & Balch, Suicide: A Constitutional Right?, 24 Duquense L. Rev.
1, 56-63 (1985). While suicide itself has generally not been considered
a punishable crime in the United States, largely because the common-law
punishment of forfeiture was rejected as improperly penalizing an innocent
family, see id., at 98-99, most States have consistently punished the
act of assisting a suicide as either a common-law or statutory crime and
some continue to view suicide as an unpunishable crime. See generally
id., at 67-100, 148-242. *fn53 Criminal prohibitions on such assistance
remain widespread, as exemplified in the Washington statute in question
here. *fn54
[119] The principal significance of this history in the State of Washington,
according to respondents, lies in its repudiation of the old tradition
to the extent of eliminating the criminal suicide prohibitions. Respondents
do not argue that the State's decision goes further, to imply that the
State has repudiated any legitimate claim to discourage suicide or to
limit its encouragement. The reasons for the decriminalization, after
all, may have had more to do with difficulties of law enforcement than
with a shift in the value ascribed to life in various circumstances or
in the perceived legitimacy of taking one's own. See, e.g., Kamisar, Physician-Assisted
Suicide: The Last Bridge to Active Voluntary Euthanasia, in Euthanasia
Examined 225, 229 (J. Keown ed. 1995); CeloCruz, Aid-in-Dying: Should
We Decriminalize Physician-Assisted Suicide and Physician-Committed Euthanasia?,
18 Am. J. L. & Med. 369, 375 (1992); Marzen, O'Dowd, Crone, &
Balch 24 Duquesne L. Rev. supra, at 98-99. Thus it may indeed make sense
for the State to take its hands off suicide as such, while continuing
to prohibit the sort of assistance that would make its commission easier.
See, e.g., American Law Institute, Model Penal Code Section(s) 210.5,
Comment 5 (1980). Decriminalization does not, then, imply the existence
of a constitutional liberty interest in suicide as such; it simply opens
the door to the assertion of a cognizable liberty interest in bodily integrity
and associated medical care that would otherwise have been inapposite
so long as suicide, as well as assisting a suicide, was a criminal offense.
[120] This liberty interest in bodily integrity was phrased in a general
way by then-Judge Cardozo when he said, "[e]very human being of adult
years and sound mind has a right to determine what shall be done with
his own body" in relation to his medical needs. Schloendorff v. Society
of New York Hospital, 211 N. Y. 125, 129, 105 N.E. 92, 93 (1914). The
familiar examples of this right derive from the common law of battery
and include the right to be free from medical invasions into the body,
Cruzan v. Director, Mo. Dept. of Health, 497 U. S., at 269-279, as well
as a right generally to resist enforced medication, see Washington v.
Harper, 494 U. S. 210, 221-222, 229 (1990). Thus "[i]t is settled
now . . . that the Constitution places limits on a State's right to interfere
with a person's most basic decisions about . . . bodily integrity."
Casey, 505 U. S., at 849 (citations omitted); see also Cruzan, 497 U.
S., at 278; id., at 288 (O'Connor, J., concurring); Washington v. Harper,
supra, at 221-222; Winston v. Lee, 470 U. S. 753, 761-762 (1985); Rochin
v. California, 342 U. S., at 172. Constitutional recognition of the right
to bodily integrity underlies the assumed right, good against the State,
to require physicians to terminate artificial life support, Cruzan, supra,
at 279 ("we assume that the United States Constitution would grant
a competent person a constitutionally protected right to refuse lifesaving
hydration and nutrition"), and the affirmative right to obtain medical
intervention to cause abortion, see Casey, supra, at 857, 896; cf. Roe
v. Wade, 410 U. S., at 153.
[121] It is, indeed, in the abortion cases that the most telling recognitions
of the importance of bodily integrity and the concomitant tradition of
medical assistance have occurred. In Roe v. Wade, the plaintiff contended
that the Texas statute making it criminal for any person to "procure
an abortion," id., at 117, for a pregnant woman was unconstitutional
insofar as it prevented her from "terminat[ing] her pregnancy by
an abortion `performed by a competent, licensed physician, under safe,
clinical conditions,' " id., at 120, and in striking down the statute
we stressed the importance of the relationship between patient and physician,
see id., at 153, 156.
[122] The analogies between the abortion cases and this one are several.
Even though the State has a legitimate interest in discouraging abortion,
see Casey, 505 U. S., at 871 (joint opinion of O'Connor, Kennedy, and
Souter, JJ.) Roe, 410 U. S., at 162, the Court recognized a woman's right
to a physician's counsel and care. Like the decision to commit suicide,
the decision to abort potential life can be made irresponsibly and under
the influence of others, and yet the Court has held in the abortion cases
that physicians are fit assistants. Without physician assistance in abortion,
the woman's right would have too often amounted to nothing more than a
right to self-mutilation, and without a physician to assist in the suicide
of the dying, the patient's right will often be confined to crude methods
of causing death, most shocking and painful to the decedent's survivors.
[123] There is, finally, one more reason for claiming that a physician's
assistance here would fall within the accepted tradition of medical care
in our society, and the abortion cases are only the most obvious illustration
of the further point. While the Court has held that the performance of
abortion procedures can be restricted to physicians, the Court's opinion
in Roe recognized the doctors' role in yet another way. For, in the course
of holding that the decision to perform an abortion called for a physician's
assistance, the Court recognized that the good physician is not just a
mechanic of the human body whose services have no bearing on a person's
moral choices, but one who does more than treat symptoms, one who ministers
to the patient. See id., at 153; see also Griswold v. Connecticut, 381
U. S., at 482 ("This law . . . operates directly on an intimate relation
of husband and wife and their physician's role in one aspect of that relation");
see generally R. Cabot, Ether Day Address, Boston Medical and Surgical
J. 287, 288 (1920). This idea of the physician as serving the whole person
is a source of the high value traditionally placed on the medical relationship.
Its value is surely as apparent here as in the abortion cases, for just
as the decision about abortion is not directed to correcting some pathology,
so the decision in which a dying patient seeks help is not so limited.
The patients here sought not only an end to pain (which they might have
had, although perhaps at the price of stupor) but an end to their short
remaining lives with a dignity that they believed would be denied them
by powerful pain medication, as well as by their consciousness of dependency
and helplessness as they approached death. In that period when the end
is imminent, they said, the decision to end life is closest to decisions
that are generally accepted as proper instances of exercising autonomy
over one's own body, instances recognized under the Constitution and the
State's own law, instances in which the help of physicians is accepted
as falling within the traditional norm.
[124] Respondents argue that the State has in fact already recognized
enough evolving examples of this tradition of patient care to demonstrate
the strength of their claim. Washington, like other States, authorizes
physicians to withdraw life-sustaining medical treatment and artificially
delivered food and water from patients who request it, even though such
actions will hasten death. See Wash. Rev. Code Section(s) 70.122.110,
70.122.051 (1994); see generally Notes to Uniform Rights of the Terminally
Ill Act, 9B U. L. A. 168-169 (Supp. 1997) (listing state statutes). The
State permits physicians to alleviate anxiety and discomfort when withdrawing
artificial life-supporting devices by administering medication that will
hasten death even further. And it generally permits physicians to administer
medication to patients in terminal conditions when the primary intent
is to alleviate pain, even when the medication is so powerful as to hasten
death and the patient chooses to receive it with that understanding. See
Wash. Rev. Code Section(s) 70.122.010 (1994); see generally P. Rousseau,
Terminal Sedation in the Care of Dying Patients, 156 Archives of Internal
Medicine 1785 (1996); Truog, Berde, Mitchell, & Grier, Barbiturates
in the Care of the Terminally Ill, 327 New Eng. J. Med. 1678 (1992). *fn55
[125] 2.
[126] The argument supporting respondents' position thus progresses through
three steps of increasing forcefulness. First, it emphasizes the decriminalization
of suicide. Reliance on this fact is sanctioned under the standard that
looks not only to the tradition retained, but to society's occasional
choices to reject traditions of the legal past. See Poe v. Ullman, 367
U. S., at 542 (Harlan, J., dissenting). While the common law prohibited
both suicide and aiding a suicide, with the prohibition on aiding largely
justified by the primary prohibition on self-inflicted death itself, see,
e.g., American Law Institute, Model Penal Code Section(s) 210.5, Comment
1, pp. 92-93, and n. 7 (1980), the State's rejection of the traditional
treatment of the one leaves the criminality of the other open to questioning
that previously would not have been appropriate. The second step in the
argument is to emphasize that the State's own act of decriminalization
gives a freedom of choice much like the individual's option in recognized
instances of bodily autonomy. One of these, abortion, is a legal right
to choose in spite of the interest a State may legitimately invoke in
discouraging the practice, just as suicide is now subject to choice, despite
a state interest in discouraging it. The third step is to emphasize that
respondents claim a right to assistance not on the basis of some broad
principle that would be subject to exceptions if that continuing interest
of the State's in discouraging suicide were to be recognized at all. Respondents
base their claim on the traditional right to medical care and counsel,
subject to the limiting conditions of informed, responsible choice when
death is imminent, conditions that support a strong analogy to rights
of care in other situations in which medical counsel and assistance have
been available as a matter of course. There can be no stronger claim to
a physician's assistance than at the time when death is imminent, a moral
judgment implied by the State's own recognition of the legitimacy of medical
procedures necessarily hastening the moment of impending death.
[127] In my judgment, the importance of the individual interest here,
as within that class of "certain interests" demanding careful
scrutiny of the State's contrary claim, see Poe, supra, at 543, cannot
be gainsaid. Whether that interest might in some circumstances, or at
some time, be seen as "fundamental" to the degree entitled to
prevail is not, however, a conclusion that I need draw here, for I am
satisfied that the State's interests described in the following section
are sufficiently serious to defeat the present claim that its law is arbitrary
or purposeless.
B.
[128] The State has put forward several interests to justify the Washington
law as applied to physicians treating terminally ill patients, even those
competent to make responsible choices: protecting life generally, Brief
for Petitioners 33, discouraging suicide even if knowing and voluntary,
id., at 37-38, and protecting terminally ill patients from involuntary
suicide and euthanasia, both voluntary and nonvoluntary, id., at 34-35.
[129] It is not necessary to discuss the exact strengths of the first
two claims of justification in the present circumstances, for the third
is dispositive for me. That third justification is different from the
first two, for it addresses specific features of respondents' claim, and
it opposes that claim not with a moral judgment contrary to respondents',
but with a recognized state interest in the protection of nonresponsible
individuals and those who do not stand in relation either to death or
to their physicians as do the patients whom respondents describe. The
State claims interests in protecting patients from mistakenly and involuntarily
deciding to end their lives, and in guarding against both voluntary and
involuntary euthanasia. Leaving aside any difficulties in coming to a
clear concept of imminent death, mistaken decisions may result from inadequate
palliative care or a terminal prognosis that turns out to be error; coercion
and abuse may stem from the large medical bills that family members cannot
bear or unreimbursed hospitals decline to shoulder. Voluntary and involuntary
euthanasia may result once doctors are authorized to prescribe lethal
medication in the first instance, for they might find it pointless to
distinguish between patients who administer their own fatal drugs and
those who wish not to, and their compassion for those who suffer may obscure
the distinction between those who ask for death and those who may be unable
to request it. The argument is that a progression would occur, obscuring
the line between the ill and the dying, and between the responsible and
the unduly influenced, until ultimately doctors and perhaps others would
abuse a limited freedom to aid suicides by yielding to the impulse to
end another's suffering under conditions going beyond the narrow limits
the respondents propose. The State thus argues, essentially, that respondents'
claim is not as narrow as it sounds, simply because no recognition of
the interest they assert could be limited to vindicating those interests
and affecting no others. The State says that the claim, in practical effect,
would entail consequences that the State could, without doubt, legitimately
act to prevent.
[130] The mere assertion that the terminally sick might be pressured
into suicide decisions by close friends and family members would not alone
be very telling. Of course that is possible, not only because the costs
of care might be more than family members could bear but simply because
they might naturally wish to see an end of suffering for someone they
love. But one of the points of restricting any right of assistance to
physicians, would be to condition the right on an exercise of judgment
by someone qualified to assess the patient's responsible capacity and
detect the influence of those outside the medical relationship.
[131] The State, however, goes further, to argue that dependence on the
vigilance of physicians will not be enough. First, the lines proposed
here (particularly the requirement of a knowing and voluntary decision
by the patient) would be more difficult to draw than the lines that have
limited other recently recognized due process rights. Limiting a state
from prosecuting use of artificial contraceptives by married couples posed
no practical threat to the State's capacity to regulate contraceptives
in other ways that were assumed at the time of Poe to be legitimate; the
trimester measurements of Roe and the viability determination of Casey
were easy to make with a real degree of certainty. But the knowing and
responsible mind is harder to assess. *fn56 Second, this difficulty could
become the greater by combining with another fact within the realm of
plausibility, that physicians simply would not be assiduous to preserve
the line. They have compassion, and those who would be willing to assist
in suicide at all might be the most susceptible to the wishes of a patient,
whether the patient were technically quite responsible or not. Physicians,
and their hospitals, have their own financial incentives, too, in this
new age of managed care. Whether acting from compassion or under some
other influence, a physician who would provide a drug for a patient to
administer might well go the further step of administering the drug himself;
so, the barrier between assisted suicide and euthanasia could become porous,
and the line between voluntary and involuntary euthanasia as well. *fn57
The case for the slippery slope is fairly made out here, not because recognizing
one due process right would leave a court with no principled basis to
avoid recognizing another, but because there is a plausible case that
the right claimed would not be readily containable by reference to facts
about the mind that are matters of difficult judgment, or by gatekeepers
who are subject to temptation, noble or not.
[132] Respondents propose an answer to all this, the answer of state
regulation with teeth. Legislation proposed in several States, for example,
would authorize physician-assisted suicide but require two qualified physicians
to confirm the patient's diagnosis, prognosis, and competence; and would
mandate that the patient make repeated requests witnessed by at least
two others over a specified time span; and would impose reporting requirements
and criminal penalties for various acts of coercion. See App. to Brief
for State Legislators as Amici Curiae 1a-2a.
[133] But at least at this moment there are reasons for caution in predicting
the effectiveness of the teeth proposed. Respondents' proposals, as it
turns out, sound much like the guidelines now in place in the Netherlands,
the only place where experience with physician-assisted suicide and euthanasia
has yielded empirical evidence about how such regulations might affect
actual practice. Dutch physicians must engage in consultation before proceeding,
and must decide whether the patient's decision is voluntary, well considered,
and stable, whether the request to die is enduring and made more than
once, and whether the patient's future will involve unacceptable suffering.
See C. Gomez, Regulating Death 40-43 (1991). There is, however, a substantial
dispute today about what the Dutch experience shows. Some commentators
marshall evidence that the Dutch guidelines have in practice failed to
protect patients from involuntary euthanasia and have been violated with
impunity. See, e.g., H. Hendin, Seduced By Death 75-84 (1997) (noting
many cases in which decisions intended to end the life of a fully competent
patient were made without a request from the patient and without consulting
the patient); Keown, Euthanasia in the Netherlands: Sliding Down the Slippery
Slope?, in Euthanasia Examined 261, 289 (J. Keown ed. 1995) (guidelines
have "proved signally ineffectual; non-voluntary euthanasia is now
widely practised and increasingly condoned in the Netherlands");
Gomez, supra, at 104-113. This evidence is contested. See, e.g., R. Epstein,
Mortal Peril 322 (1997) ("Dutch physicians are not euthanasia enthusiasts
and they are slow to practice it in individual cases"); R. Posner,
Aging and Old Age 242, and n. 23 (1995) (noting fear of "doctors'
rushing patients to their death" in the Netherlands "has not
been substantiated and does not appear realistic"); Van der Wal,
Van Eijk, Leenen, & Spreeuwenberg, Euthanasia and Assisted Suicide,
2, Do Dutch Family Doctors Act Prudently?, 9 Family Practice 135 (1992)
(finding no serious abuse in Dutch practice). The day may come when we
can say with some assurance which side is right, but for now it is the
substantiality of the factual disagreement, and the alternatives for resolving
it, that matter. They are, for me, dispositive of the due process claim
at this time.
[134] I take it that the basic concept of judicial review with its possible
displacement of legislative judgment bars any finding that a legislature
has acted arbitrarily when the following conditions are met: there is
a serious factual controversy over the feasibility of recognizing the
claimed right without at the same time making it impossible for the State
to engage in an undoubtedly legitimate exercise of power; facts necessary
to resolve the controversy are not readily ascertainable through the judicial
process; but they are more readily subject to discovery through legislative
factfinding and experimentation. It is assumed in this case, and must
be, that a State's interest in protecting those unable to make responsible
decisions and those who make no decisions at all entitles the State to
bar aid to any but a knowing and responsible person intending suicide,
and to prohibit euthanasia. How, and how far, a State should act in that
interest are judgments for the State, but the legitimacy of its action
to deny a physician the option to aid any but the knowing and responsible
is beyond question.
[135] The capacity of the State to protect the others if respondents
were to prevail is, however, subject to some genuine question, underscored
by the responsible disagreement over the basic facts of the Dutch experience.
This factual controversy is not open to a judicial resolution with any
substantial degree of assurance at this time. It is not, of course, that
any controversy about the factual predicate of a due process claim disqualifies
a court from resolving it. Courts can recognize captiousness, and most
factual issues can be settled in a trial court. At this point, however,
the factual issue at the heart of this case does not appear to be one
of those. The principal enquiry at the moment is into the Dutch experience,
and I question whether an independent front-line investigation into the
facts of a foreign country's legal administration can be soundly undertaken
through American courtroom litigation. While an extensive literature on
any subject can raise the hopes for judicial understanding, the literature
on this subject is only nascent. Since there is little experience directly
bearing on the issue, the most that can be said is that whichever way
the Court might rule today, events could overtake its assumptions, as
experimentation in some jurisdictions confirmed or discredited the concerns
about progression from assisted suicide to euthanasia.
[136] Legislatures, on the other hand, have superior opportunities to
obtain the facts necessary for a judgment about the present controversy.
Not only do they have more flexible mechanisms for factfinding than the
Judiciary, but their mechanisms include the power to experiment, moving
forward and pulling back as facts emerge within their own jurisdictions.
There is, indeed, good reason to suppose that in the absence of a judgment
for respondents here, just such experimentation will be attempted in some
of the States. See, e.g., Ore. Rev. Stat. Ann. Section(s) 127.800 et seq.
(Supp. 1996); App. to Brief for State Legislators as Amici Curiae 1a (listing
proposed statutes).
[137] I do not decide here what the significance might be of legislative
foot-dragging in ascertaining the facts going to the State's argument
that the right in question could not be confined as claimed. Sometimes
a court may be bound to act regardless of the institutional preferability
of the political branches as forums for addressing constitutional claims.
See, e.g., Bolling v. Sharpe, 347 U. S. 497 (1954). Now, it is enough
to say that our examination of legislative reasonableness should consider
the fact that the Legislature of the State of Washington is no more obviously
at fault than this Court is in being uncertain about what would happen
if respondents prevailed today. We therefore have a clear question about
which institution, a legislature or a court, is relatively more competent
to deal with an emerging issue as to which facts currently unknown could
be dispositive. The answer has to be, for the reasons already stated,
that the legislative process is to be preferred. There is a closely related
further reason as well.
[138] One must bear in mind that the nature of the right claimed, if
recognized as one constitutionally required, would differ in no essential
way from other constitutional rights guaranteed by enumeration or derived
from some more definite textual source than "due process." An
unenumerated right should not therefore be recognized, with the effect
of displacing the legislative ordering of things, without the assurance
that its recognition would prove as durable as the recognition of those
other rights differently derived. To recognize a right of lesser promise
would simply create a constitutional regime too uncertain to bring with
it the expectation of finality that is one of this Court's central obligations
in making constitutional decisions. See Casey, 505 U. S., at 864-869.
[139] Legislatures, however, are not so constrained. The experimentation
that should be out of the question in constitutional adjudication displacing
legislative judgments is entirely proper, as well as highly desirable,
when the legislative power addresses an emerging issue like assisted suicide.
The Court should accordingly stay its hand to allow reasonable legislative
consideration. While I do not decide for all time that respondents' claim
should not be recognized, I acknowledge the legislative institutional
competence as the better one to deal with that claim at this time.
[140] Justice Ginsburg, concurring in the judgments.
[141] I concur in the Court's judgments in these cases substantially
for the reasons stated by Justice O'Connor in her concurring opinion.
***** BEGIN FOOTNOTE(S) HERE *****
[142] *fn1 Act of Apr. 28, 1854, Section(s) 17, 1854 Wash. Laws 78 ("Every
person deliberately assisting another in the commission of self-murder,
shall be deemed guilty of manslaughter"); see also Act of Dec. 2,
1869, Section(s) 17, 1869 Wash. Laws 201; Act of Nov. 10, 1873, Section(s)
19, 1873 Wash. Laws 184; Criminal Code, ch. 249, Section(s) 135-136, 1909
Wash. Laws, 11th sess., 929.
[143] *fn2 Under Washington's Natural Death Act, "adult persons
have the fundamental right to control the decisions relating to the rendering
of their own health care, including the decision to have life-sustaining
treatment withheld or withdrawn in instances of a terminal condition or
permanent unconscious condition." Wash. Rev. Code Section(s) 70.122.010
(1994). In Washington, "[a]ny adult person may execute a directive
directing the withholding or withdrawal of life-sustaining treatment in
a terminal condition or permanent unconscious condition," Section(s)
70.122.030, and a physician who, in accordance with such a directive,
participates in the withholding or withdrawal of life-sustaining treatment
is immune from civil, criminal, or professional liability. Section(s)
70.122.051.
[144] *fn3 Glucksberg Declaration, App. 35; Halperin Declaration, id.,
at 49-50; Preston Declaration, id., at 55-56; Shalit Declaration, id.,
at 73-74.
[145] *fn4 John Doe, Jane Roe, and James Poe, plaintiffs in the District
Court, were then in the terminal phases of serious and painful illnesses.
They declared that they were mentally competent and desired assistance
in ending their lives. Declaration of Jane Roe, id., at 23-25; Declaration
of John Doe, id., at 27-28; Declaration of James Poe, id., at 30-31; Compassion
in Dying, 850 F. Supp., at 1456-1457.
[146] *fn5 The District Court determined that Casey's "undue burden"
standard, 505 U. S., at 874 (joint opinion), not the standard from United
States v. Salerno, 481 U. S. 739, 745 (1987) (requiring a showing that
"no set of circumstances exists under which the [law] would be valid"),
governed the plaintiffs' facial challenge to the assisted-suicide ban.
850 F. Supp., at 1462-1464.
[147] *fn6 Although, as Justice Stevens observes, post, at 2-3 (opinion
concurring in judgment), "[the court's] analysis and eventual holding
that the statute was unconstitutional was not limited to a particular
set of plaintiffs before it," the court did note that "[d]eclaring
a statute unconstitutional as applied to members of a group is atypical
but not uncommon." 79 F. 3d, at 798, n. 9, and emphasized that it
was "not deciding the facial validity of [the Washington statute],"
id., at 797-798, and nn. 8-9. It is therefore the court's holding that
Washington's physician-assisted suicide statute is unconstitutional as
applied to the "class of terminally ill, mentally competent patients,"
post, at 14 (Stevens, J., concurring in judgment), that is before us today.
[148] *fn7 The Court of Appeals did note, however, that "the equal
protection argument relied on by [the District Court] is not insubstantial,"
79 F. 3d., at 838, n. 139, and sharply criticized the opinion in a separate
case then pending before the Ninth Circuit, Lee v. Oregon, 891 F. Supp.
1429 (Ore. 1995) (Oregon's Death With Dignity Act, which permits physician-assisted
suicide, violates the Equal Protection Clause because it does not provide
adequate safeguards against abuse), vacated, Lee v. Oregon, 107 F. 3d
1382 (CA9 1997) (concluding that plaintiffs lacked Article III standing).
Lee, of course, is not before us, any more than it was before the Court
of Appeals below, and we offer no opinion as to the validity of the Lee
courts' reasoning. In Vacco v. Quill, post, however, decided today, we
hold that New York's assisted-suicide ban does not violate the Equal Protection
Clause.
[149] *fn8 See Compassion in Dying v. Washington, 79 F. 3d 790, 847,
and nn. 10-13 (CA9 1996) (Beezer, J., dissenting) ("In total, forty-four
states, the District of Columbia and two territories prohibit or condemn
assisted suicide") (citing statutes and cases); Rodriguez v. British
Columbia (Attorney General), 107 D. L. R. (4th) 342, 404 (Can. 1993) ("[A]
blanket prohibition on assisted suicide . . . is the norm among western
democracies") (discussing assisted-suicide provisions in Austria,
Spain, Italy, the United Kingdom, the Netherlands, Denmark, Switzerland,
and France). Since the Ninth Circuit's decision, Louisiana, Rhode Island,
and Iowa have enacted statutory assisted-suicide bans. La. Rev. Stat.
Ann. Section(s) 14:32.12 (Supp. 1997); R. I. Gen. Laws Section(s) 11-60-1,
11-60-3 (Supp. 1996); Iowa Code Ann. Section(s) 707A.2, 707A.3 (Supp.
1997). For a detailed history of the States' statutes, see Marzen, O'Dowd,
Crone & Balch, Suicide: A Constitutional Right?, 24 Duquesne L. Rev.
1, 148-242 (1985) (Appendix) (hereinafter Marzen).
[150] *fn9 The common law is thought to have emerged through the expansion
of pre-Norman institutions sometime in the 12th century. J. Baker, An
Introduction to English Legal History 11 (2d ed. 1979). England adopted
the ecclesiastical prohibition on suicide five centuries earlier, in the
year 673 at the Council of Hereford, and this prohibition was reaffirmed
by King Edgar in 967. See G. Williams, The Sanctity of Life and the Criminal
Law 257 (1957).
[151] *fn10 Marzen 59. Other late-medieval treatise writers followed
and restated Bracton; one observed that "man-slaughter" may
be "[o]f [one]self; as in case, when people hang themselves or hurt
themselves, or otherwise kill themselves of their own felony" or
"[o]f others; as by beating, famine, or other punishment; in like
cases, all are manslayers." A. Horne, The Mirrour of Justices, ch.
1, Section(s) 9, pp. 41-42 (W. Robinson ed. 1903). By the mid-16th century,
the Court at Common Bench could observe that "[suicide] is an Offence
against Nature, against God, and against the King. . . . [T]o destroy
one's self is contrary to Nature, and a Thing most horrible." Hales
v. Petit, 1 Plowd. Com. 253, 261, 75 Eng. Rep. 387, 400 (1561-1562).
[152] In 1644, Sir Edward Coke published his Third Institute, a lodestar
for later common lawyers. See T. Plucknett, A Concise History of the Common
Law 281-284 (5th ed. 1956). Coke regarded suicide as a category of murder,
and agreed with Bracton that the goods and chattels-but not, for Coke,
the lands-of a sane suicide were forfeit. 3 E. Coke, Institutes *54. William
Hawkins, in his 1716 Treatise of the Pleas of the Crown, followed Coke,
observing that "our laws have always had . . . an abhorrence of this
crime." 1 W. Hawkins, Pleas of the Crown, ch. 27, Section(s) 4, p.
164 (T. Leach ed. 1795).
[153] *fn11 In 1850, the California legislature adopted the English common
law, under which assisting suicide was, of course, a crime. Act of Apr.
13, 1850, ch. 95, 1850 Cal. Stats. 219. The provision adopted in 1874
provided that "[e]very person who deliberately aids or advises, or
encourages another to commit suicide, is guilty of a felony." Act
of Mar. 30, 1874, ch. 614, Section(s) 13, 400, 255 (codified at Cal. Penal
Code Section(s) 400 (T. Hittel ed. 1876)).
[154] *fn12 "A person who purposely aids or solicits another to
commit suicide is guilty of a felony in the second degree if his conduct
causes such suicide or an attempted suicide, and otherwise of a misdemeanor."
American Law Institute, Model Penal Code Section(s) 210.5(2) (Official
Draft and Revised Comments 1980).
[155] *fn13 Initiative 119 would have amended Washington's Natural Death
Act, Wash. Rev. Code Section(s) 70.122.010 et seq. (1994), to permit "aid-in-dying",
defined as "aid in the form of a medical service provided in person
by a physician that will end the life of a conscious and mentally competent
qualified patient in a dignified, painless and humane manner, when requested
voluntarily by the patient through a written directive in accordance with
this chapter at the time the medical service is to be provided."
App. H to Pet. for Cert. 3-4.
[156] *fn14 Ore. Rev. Stat. Section(s) 127.800 et seq. (1996); Lee v.
Oregon, 891 F. Supp. 1429 (Ore. 1995) (Oregon Act does not provide sufficient
safeguards for terminally ill persons and therefore violates the Equal
Protection Clause), vacated, Lee v. Oregon, 107 F. 3d 1382 (CA9 1997).
[157] *fn15 See, e.g., Alaska H. B. 371 (1996); Ariz. S. B. 1007 (1996);
Cal. A. B. 1080, A. B. 1310 (1995); Colo. H. B. 1185 (1996); Colo. H.
B. 1308 (1995); Conn. H. B. 6298 (1995); Ill. H. B. 691, S. B. 948 (1997);
Me. H. P. 663 (1997); Me. H. P. 552 (1995); Md. H. B. 474 (1996); Md.
H. B. 933 (1995); Mass. H. B. 3173 (1995); Mich. H. B. 6205 (1996); Mich.
S. B. 556 (1996); Mich. H. B. 4134 (1995); Miss. H. B. 1023 (1996); N.
H. H. B. 339 (1995); N. M. S. B. 446 (1995); N. Y. S. B. 5024 (1995);
N. Y. A. B. 6333 (1995); Neb. L. B. 406 (1997); Neb. L. B. 1259 (1996);
R. I. S. 2985 (1996); Vt. H. B. 109 (1997); Vt. H. B. 335 (1995); Wash.
S. B. 5596 (1995); Wis. A. B. 174, S. B. 90 (1995); Senate of Canada,
Of Life and Death, Report of the Special Senate Committee on Euthanasia
and Assisted Suicide A-156 (June 1995) (describing unsuccessful proposals,
between 1991-1994, to legalize assisted suicide).
[158] *fn16 Other countries are embroiled in similar debates: The Supreme
Court of Canada recently rejected a claim that the Canadian Charter of
Rights and Freedoms establishes a fundamental right to assisted suicide,
Rodriguez v. British Columbia (Attorney General), 107 D. L. R. (4th) 342
(1993); the British House of Lords Select Committee on Medical Ethics
refused to recommend any change in Great Britain's assisted-suicide prohibition,
House of Lords, Session 1993-94 Report of the Select Committee on Medical
Ethics, 12 Issues in Law & Med. 193, 202 (1996) ("We identify
no circumstances in which assisted suicide should be permitted");
New Zealand's Parliament rejected a proposed "Death With Dignity
Bill" that would have legalized physician-assisted suicide in August
1995, Graeme, MPs Throw out Euthanasia Bill, The Dominion (Wellington),
Aug. 17, 1995, p. 1; and the Northern Territory of Australia legalized
assisted suicide and voluntary euthanasia in 1995. See Shenon, Australian
Doctors Get Right to Assist Suicide, N.Y. Times, July 28, 1995, p. A8.
As of February 1997, three persons had ended their lives with physician
assistance in the Northern Territory. Mydans, Assisted Suicide: Australia
Faces a Grim Reality, N. Y. Times, Febr. 2, 1997, p. A3. On March 24,
1997, however, the Australian Senate voted to overturn the Northern Territory's
law. Thornhill, Australia Repeals Euthanasia Law, Washington Post, March
25, 1997, p. A14; see Euthanasia Laws Act 1997, No. 17, 1997 (Austl.).
On the other hand, on May 20, 1997, Colombia's Constitutional Court legalized
voluntary euthanasia for terminally ill people. Sentencia No. C-239/97
(Corte Constitucional, Mayo 20, 1997); see Colombia's Top Court Legalizes
Euthanasia, Orlando Sentinel, May 22, 1997, p. A18.
[159] *fn17 In Justice Souter's opinion, Justice Harlan's Poe dissent
supplies the "modern justification" for substantive-due-process
review. Post, at 5, and n. 2 (Souter, J., concurring in judgment). But
although Justice Harlan's opinion has often been cited in due-process
cases, we have never abandoned our fundamental-rights-based analytical
method. Just four Terms ago, six of the Justices now sitting joined the
Court's opinion in Reno v. Flores, 507 U. S. 292, 301-305 (1993); Poe
was not even cited. And in Cruzan, neither the Court's nor the concurring
opinions relied on Poe; rather, we concluded that the right to refuse
unwanted medical treatment was so rooted in our history, tradition, and
practice as to require special protection under the Fourteenth Amendment.
Cruzan v. Director, Mo. Dept. of Health, 497 U. S. 261, 278-279 (1990);
id., at 287-288 (O'Connor, J., concurring). True, the Court relied on
Justice Harlan's dissent in Casey, 505 U. S., at 848-850, but, as Flores
demonstrates, we did not in so doing jettison our established approach.
Indeed, to read such a radical move into the Court's opinion in Casey
would seem to fly in the face of that opinion's emphasis on stare decisis.
505 U. S., at 854-869.
[160] *fn18 See, e.g., Quill v. Vacco, 80 F. 3d 716, 724 (CA2 1996) ("right
to assisted suicide finds no cognizable basis in the Constitution's language
or design"); Compassion in Dying v. Washington, 49 F. 3d 586, 591
(CA9 1995) (referring to alleged "right to suicide," "right
to assistance in suicide," and "right to aid in killing oneself");
People v. Kevorkian, 447 Mich. 436, 476, n. 47, 527 N. W. 2d 714, 730,
n. 47 (1994) ("[T]he question that we must decide is whether the
[C]onstitution encompasses a right to commit suicide and, if so, whether
it includes a right to assistance").
[161] *fn19 See Moore v. East Cleveland, 431 U. S. 494, 503 (1977) ("[T]he
Constitution protects the sanctity of the family precisely because the
institution of the family is deeply rooted in this Nation's history and
tradition") (emphasis added); Griswold v. Connecticut, 381 U. S.
479, 485-486 (1965) (intrusions into the "sacred precincts of marital
bedrooms" offend rights "older than the Bill of Rights");
id., at 495-496 (Goldberg, J., concurring) (the law in question "disrupt[ed]
the traditional relation of the family-a relation as old and as fundamental
as our entire civilization"); Loving v. Virginia, 388 U. S. 1, 12
(1967) ("The freedom to marry has long been recognized as one of
the vital personal rights essential to the orderly pursuit of happiness");
Turner v. Safley, 482 U. S. 78, 95 (1987) ("[T]he decision to marry
is a fundamental right"); Roe v. Wade, 410 U. S. 113, 140 (1973)
(stating that at the Founding and throughout the 19th century, "a
woman enjoyed a substantially broader right to terminate a pregnancy");
Skinner v. Oklahoma ex rel. Williamson, 316 U. S. 535, 541 (1942) ("Marriage
and procreation are fundamental"); Pierce v. Society of Sisters,
268 U. S. 510, 535 (1925); Meyer v. Nebraska, 262 U. S. 390, 399 (1923)
(liberty includes "those privileges long recognized at common law
as essential to the orderly pursuit of happiness by free men").
[162] *fn20 The court identified and discussed six state interests: (1)
preserving life; (2) preventing suicide; (3) avoiding the involvement
of third parties and use of arbitrary, unfair, or undue influence; (4)
protecting family members and loved ones; (5) protecting the integrity
of the medical profession; and (6) avoiding future movement toward euthanasia
and other abuses. 79 F. 3d, at 816-832.
[163] *fn21 Respondents also admit the existence of these interests,
Brief for Respondents 28-39, but contend that Washington could better
promote and protect them through regulation, rather than prohibition,
of physician-assisted suicide. Our inquiry, however, is limited to the
question whether the State's prohibition is rationally related to legitimate
state interests.
[164] *fn22 The States express this commitment by other means as well:
[165] "[N]early all states expressly disapprove of suicide and assisted
suicide either in statutes dealing with durable powers of attorney in
health-care situations, or in `living will' statutes. In addition, all
states provide for the involuntary commitment of persons who may harm
themselves as the result of mental illness, and a number of states allow
the use of non-deadly force to thwart suicide attempts." People v.
Kevorkian, 447 Mich., at 478-479, and nn. 53-56, 527 N. W. 2d, at 731-732,
and nn. 53-56.
[166] *fn23 Justice Souter concludes that "[t]he case for the slippery
slope is fairly made out here, not because recognizing one due process
right would leave a court with no principled basis to avoid recognizing
another, but because there is a plausible case that the right claimed
would not be readily containable by reference to facts about the mind
that are matters of difficult judgment, or by gatekeepers who are subject
to temptation, noble or not." Post, at 36-37 (opinion concurring
in judgment). We agree that the case for a slippery slope has been made
out, but-bearing in mind Justice Cardozo's observation of "[t]he
tendency of a principle to expand itself to the limit of its logic,"
The Nature of the Judicial Process 51 (1932)-we also recognize the reasonableness
of the widely expressed skepticism about the lack of a principled basis
for confining the right. See Brief for United States as Amicus Curiae
26 ("Once a legislature abandons a categorical prohibition against
physician assisted suicide, there is no obvious stopping point");
Brief for Not Dead Yet et al. as Amici Curiae 21-29; Brief for Bioethics
Professors as Amici Curiae 23-26; Report of the Council on Ethical and
Judicial Affairs, App. 133, 140 ("[I]f assisted suicide is permitted,
then there is a strong argument for allowing euthanasia"); New York
Task Force 132; Kamisar, The "Right to Die": On Drawing (and
Erasing) Lines, 35 Duquesne L. Rev. 481 (1996); Kamisar, Against Assisted
Suicide-Even in a Very Limited Form, 72 U. Det. Mercy L. Rev. 735 (1995).
[167] *fn24 Justice Stevens states that "the Court does conceive
of respondents' claim as a facial challenge-addressing not the application
of the statute to a particular set of plaintiffs before it, but the constitutionality
of the statute's categorical prohibition . . . ." Post, at 4 (opinion
concurring in judgment). We emphasize that we today reject the Court of
Appeals' specific holding that the statute is unconstitutional "as
applied" to a particular class. See n. 6, supra. Justice Stevens
agrees with this holding, see post, at 14, but would not "foreclose
the possibility that an individual plaintiff seeking to hasten her death,
or a doctor whose assistance was sought, could prevail in a more particularized
challenge," ibid. Our opinion does not absolutely foreclose such
a claim. However, given our holding that the Due Process Clause of the
Fourteenth Amendment does not provide heightened protection to the asserted
liberty interest in ending one's life with a physician's assistance, such
a claim would have to be quite different from the ones advanced by respondents
here.
[168] *fn25 Justice Ginsburg concurs in the Court's judgments substantially
for the reasons stated in this opinion. Justice Breyer joins this opinion
except insofar as it joins the opinions of the Court.
[169] *fn26 Gregg v. Georgia, 428 U. S. 153 (1976)
[170] *fn27 Proffitt v. Florida, 428 U. S. 242 (1976).
[171] *fn28 Jurek v. Texas, 428 U. S. 262 (1976).
[172] *fn29 See, e.g., Godfrey v. Georgia, 446 U. S. 420 (1980); Enmund
v. Florida, 458 U. S. 782 (1982); Penry v. Lynaugh, 492 U. S. 302 (1989).
[173] *fn30 See ante, at 3, n. 5.
[174] *fn31 If the Court had actually applied the Salerno standard in
this action, it would have taken only a few paragraphs to identify situations
in which the Washington statute could be validly enforced. In Salerno
itself, the Court would have needed only to look at whether the statute
could be constitutionally applied to the arrestees before it; any further
analysis would have been superfluous. See Dorf, Facial Challenges to State
and Federal Statutes, 46 Stan. L. Rev. 235, 239-240 (1994) (arguing that
if the Salerno standard were taken literally, a litigant could not succeed
in her facial challenge unless she also succeeded in her as applied challenge).
[175] *fn32 In other cases and in other contexts, we have imposed a significantly
lesser burden on the challenger. The most lenient standard that we have
applied requires the challenger to establish that the invalid applications
of a statute "must not only be real, but substantial as well, judged
in relation to the statute's plainly legitimate sweep." Broadrick
v. Oklahoma, 413 U. S. 601, 615 (1973). As the Court's opinion demonstrates,
Washington's statute prohibiting assisted suicide has a "plainly
legitimate sweep." While that demonstration provides a sufficient
justification for rejecting respondents' facial challenge, it does not
mean that every application of the statute should or will be upheld.
[176] *fn33 "Who casts not up his eye to the sun when it rises?
but who takes off his eye from a comet when that breaks out? Who bends
not his ear to any bell which upon any occasion rings? but who can remove
it from that bell which is passing a piece of himself out of this world?
No man is an island, entire of itself; every man is a piece of the continent,
a part of the main. If a clod be washed away by the sea, Europe is the
less, as well as if a promontory were, as well as if a manor of thy friend's
or of thine own were; any man's death diminishes me, because I am involved
in mankind; and therefore never send to know for whom the bell tolls;
it tolls for thee." J. Donne, Meditation No. 17, Devotions Upon Emergent
Occasions 86, 87 (A. Raspa ed. 1987).
[177] *fn34 See 497 U. S., at 332, n. 2.
[178] *fn35 "[N]either the Bill of Rights nor the laws of sovereign
States create the liberty which the Due Process Clause protects. The relevant
constitutional provisions are limitations on the power of the sovereign
to infringe on the liberty of the citizen. The relevant state laws either
create property rights, or they curtail the freedom of the citizen who
must live in an ordered society. Of course, law is essential to the exercise
and enjoyment of individual liberty in a complex society. But it is not
the source of liberty, and surely not the exclusive source.
[179] "I had thought it self-evident that all men were endowed by
their Creator with liberty as one of the cardinal unalienable rights.
It is that basic freedom which the Due Process Clause protects, rather
than the particular rights or privileges conferred by specific laws or
regulations." Meachum v. Fano, 427 U. S. 215, 230 (1976) (Stevens,
J., dissenting).
[180] *fn36 "Nancy Cruzan's interest in life, no less than that
of any other person, includes an interest in how she will be thought of
after her death by those whose opinions mattered to her. There can be
no doubt that her life made her dear to her family and to others. How
she dies will affect how that life is remembered." Cruzan v. Director,
Mo. Dept. of Health, 497 U. S. 261, 344 (1990) (Stevens, J., dissenting).
[181] "Each of us has an interest in the kind of memories that will
survive after death. To that end, individual decisions are often motivated
by their impact on others. A member of the kind of family identified in
the trial court's findings in this case would likely have not only a normal
interest in minimizing the burden that her own illness imposes on others,
but also an interest in having their memories of her filled predominantly
with thoughts about her past vitality rather than her current condition."
Id., at 356.
[182] *fn37 I note that there is evidence that a significant number of
physicians support the practice of hastening death in particular situations.
A survey published in the New England Journal of Medicine, found that
56% of responding doctors in Michigan preferred legalizing assisted suicide
to an explicit ban. Bachman et al., Attitudes of Michigan Physicians and
the Public Toward Legalizing Physician-Assisted Suicide and Voluntary
Euthanasia, 334 New England J. Med. 303-309 (1996). In a survey of Oregon
doctors, 60% of the responding doctors supported legalizing assisted suicide
for terminally ill patients. See Lee et al., Legalizing Assisted Suicide-Views
of Physicians in Oregon, 335 New England J. Med. 310-315 (1996). Another
study showed that 12% of physicians polled in Washington State reported
that they had been asked by their terminally ill patients for prescriptions
to hasten death, and that, in the year prior to the study, 24% of those
physicians had complied with such requests. See Back, Wallace, Starks,
& Perlman, Physician-Assisted Suicide and Euthanasia in Washington
State, 275 JAMA 919-925 (1996); see also Doukas, Waterhouse, Gorenflo,
& Seld, Attitudes and Behaviors on Physician-Assisted Death: A Study
of Michigan Oncologists, 13 J. Clinical Oncology 1055 (1995) (reporting
that 18% of responding Michigan oncologists reported active participation
in assisted suicide); Slome, Moulton, Huffine, Gorter, & Abrams, Physicians'
Attitudes Toward Assisted Suicide in AIDS, 5 J. Acquired Immune Deficiency
Syndromes 712 (1992) (reporting that 24% of responding physicians who
treat AIDS patients would likely grant a patient's request for assistance
in hastening death).
[183] *fn38 See Vacco v. Quill, ante, at 1, nn. 1 and 2.
[184] *fn39 The American Medical Association recognized this distinction
when it supported Nancy Cruzan and continues to recognize this distinction
in its support of the States in these cases.
[185] *fn40 If a doctor prescribes lethal drugs to be self-administered
by the patient, it not at all clear that the physician's intent is that
the patient "be made dead," ante, at 7 (internal quotation marks
omitted). Many patients prescribed lethal medications never actually take
them; they merely acquire some sense of control in the process of dying
that the availability of those medications provides. See Back, supra n.
12, at 922; see also Quill, 324 New England J. Med., at 693 (describing
how some patients fear death less when they feel they have the option
of physician-assisted suicide).
[186] *fn41 A nonprofit corporation known as Compassion in Dying was
also a plaintiff and appellee below but is not a party in this Court.
[187] *fn42 As I will indicate in some detail below, I see the challenge
to the statute not as facial but as-applied, and I understand it to be
in narrower terms than those accepted by the Court.
[188] *fn43 The doctors also rely on the Equal Protection Clause, but
that source of law does essentially nothing in a case like this that the
Due Process Clause cannot do on its own.
[189] *fn44 The status of the Harlan dissent in Poe v. Ullman, 367 U.
S. 497 (1961), is shown by the Court's adoption of its result in Griswold
v. Connecticut, 381 U. S. 479 (1965), and by the Court's acknowledgment
of its status and adoption of its reasoning in Planned Parenthood of Southeastern
Pa. v. Casey, 505 U. S. 833, 848-849 (1992). See also Youngberg v. Romeo,
457 U. S. 307, 320 (1982) (citing Justice Harlan's Poe dissent as authority
for the requirement that this Court balance "the liberty of the individual"
and "the demands of an organized society"); Roberts v. United
States Jaycees, 468 U. S. 609, 619 (1984); Moore v. East Cleveland, 431
U. S. 494, 500-506, and n. 12 (1977) (plurality opinion) (opinion for
four Justices treating Justice Harlan's Poe dissent as a central explication
of the methodology of judicial review under the Due Process Clause).
[190] *fn45 Coke indicates that prohibitions against deprivations without
"due process of law" originated in an English statute that "rendred"
Magna Carta's "law of the land" in such terms. See 2 E. Coke,
Institutes 50 (1797); see also E. Corwin, Liberty Against Government 90-91
(1948).
[191] *fn46 The Slaughter-House Cases are important, of course, for their
holding that the Privileges or Immunities Clause was no source of any
but a specific handful of substantive rights. Slaughter-House Cases, 16
Wall., at 74-80. To a degree, then, that decision may have led the Court
to look to the Due Process Clause as a source of substantive rights. In
Twining v. New Jersey, 211 U. S. 78, 95-97 (1908), for example, the Court
of the Lochner Era acknowledged the strength of the case against Slaughter-House's
interpretation of the Privileges or Immunities Clause but reaffirmed that
interpretation without questioning its own frequent reliance on the Due
Process Clause as authorization for substantive judicial review. See also
J. Ely, Democracy and Distrust 14-30 (1980) (arguing that the Privileges
or Immunities Clause and not the Due Process Clause is the proper warrant
for courts' substantive oversight of state legislation). But the courts'
use of due process clauses for that purpose antedated the 1873 decision,
as we have seen, and would in time be supported in the Poe dissent, as
we shall see.
[192] *fn47 Judge Johnson of the New York Court of Appeals had made the
point more obliquely a century earlier when he wrote that, "the form
of this declaration of right, `no person shall be deprived of life, liberty
or property, without due process of law,' necessarily imports that the
legislature cannot make the mere existence of the rights secured the occasion
of depriving a person of any of them, even by the forms which belong to
`due process of law.' For if it does not necessarily import this, then
the legislative power is absolute." And, "To provide for a trial
to ascertain whether a man is in the enjoyment of [any] of these rights,
and then, as a consequence of finding that he is in the enjoyment of it,
to deprive him of it, is doing indirectly just what is forbidden to be
done directly, and reduces the constitutional provision to a nullity."
Wynehamer v. People, 13 N. Y. 378, 420 (1856).
[193] *fn48 We have made it plain, of course, that not every law that
incidentally makes it somewhat harder to exercise a fundamental liberty
must be justified by a compelling counterinterest. See Casey, 505 U. S.,
at 872-876 (joint opinion of O'Connor, Kennedy, and Souter, JJ.); Carey
v. Population Services Int'l, 431 U. S. 678, 685-686 (1977) ("[A]n
individual's [constitutionally protected] liberty to make choices regarding
contraception does not . . . automatically invalidate every state regulation
in this area. The business of manufacturing and selling contraceptives
may be regulated in ways that do not [even] infringe protected individual
choices"). But a state law that creates a "substantial obstacle,"
Casey, supra, at 877, for the exercise of a fundamental liberty interest
requires a commensurably substantial justification in order to place the
legislation within the realm of the reasonable.
[194] *fn49 Justice Harlan thus recognized just what the Court today
assumes, that by insisting on a threshold requirement that the interest
(or, as the Court puts it, the right) be fundamental before anything more
than rational basis justification is required, the Court ensures that
not every case will require the "complex balancing" that heightened
scrutiny entails. See ante, at 17-18.
[195] *fn50 Our cases have used various terms to refer to fundamental
liberty interests, see, e.g., Poe, 367 U. S., at 545 (Harlan, J., dissenting)
(" `basic liberty' ") (quoting Skinner v. Oklahoma ex rel. Williamson,
316 U. S. 535, 541 (1942)); Poe, supra, at 543 (Harlan, J., dissenting)
("certain interests" must bring "particularly careful scrutiny");
Casey, 505 U. S., at 851 ("protected liberty"); Cruzan v. Director,
Mo. Dept. of Health, 497 U. S. 261, 278 (1990) ("constitutionally
protected liberty interest"); Youngberg v. Romeo, 457 U. S., at 315
("liberty interests"), and at times we have also called such
an interest a "right" even before balancing it against the government's
interest, see, e.g., Roe v. Wade, 410 U. S. 113, 153-154 (1973); Carey
v. Population Services Int'l, supra, at 686, 688, and n. 5; Poe, 367 U.
S., at 541 ("rights `which are . . . fundamental' ") (quoting
Corfield v. Coryell, 4 Wash. C.C. 371, 380 (CC ED Pa. 1825)). Precision
in terminology, however, favors reserving the label "right"
for instances in which the individual's liberty interest actually trumps
the government's countervailing interests; only then does the individual
have anything legally enforceable as against the state's attempt at regulation.
[196] *fn51 Thus, as the Poe dissent illustrates, the task of determining
whether the concrete right claimed by an individual in a particular case
falls within the ambit of a more generalized protected liberty requires
explicit analysis when what the individual wants to do could arguably
be characterized as belonging to different strands of our legal tradition
requiring different degrees of constitutional scrutiny. See also Tribe
& Dorf, Levels of Generality in the Definition of Rights, 57 U. Chi.
L. Rev. 1057, 1091 (1990) (abortion might conceivably be assimilated either
to the tradition regarding women's reproductive freedom in general, which
places a substantial burden of justification on the State, or to the tradition
regarding protection of fetuses, as embodied in laws criminalizing feticide
by someone other than the mother, which generally requires only rationality
on the part of the State). Selecting among such competing characterizations
demands reasoned judgment about which broader principle, as exemplified
in the concrete privileges and prohibitions embodied in our legal tradition,
best fits the particular claim asserted in a particular case.
[197] *fn52 The dual dimensions of the strength and the fitness of the
government's interest are succinctly captured in the so-called "compelling
interest test," under which regulations that substantially burden
a constitutionally protected (or "fundamental") liberty may
be sustained only if "narrowly tailored to serve a compelling state
interest," Reno v. Flores, 507 U. S. 292, 302 (1993); see also, e.g.,
Roe v. Wade, 410 U. S., at 155; Carey v. Population Services Int'l, 431
U. S., at 686. How compelling the interest and how narrow the tailoring
must be will depend, of course, not only on the substantiality of the
individual's own liberty interest, but also on the extent of the burden
placed upon it, see Casey, 505 U. S., at 871-874 (opinion of O'Connor,
Kennedy, and Souter, JJ.); Carey, supra, at 686.
[198] *fn53 Washington and New York are among the minority of States
to have criminalized attempted suicide, though neither State still does
so. See Brief for Members of the New York and Washington State Legislatures
as Amicus Curiae 15, n. 8 (listing state statutes). The common law governed
New York as a colony and the New York Constitution of 1777 recognized
the common law, N. Y. Const. of 1777, Art. XXXV, and the state legislature
recognized common-law crimes by statute in 1788. See Act of Feb. 21, 1788,
ch. 37, Section(s) 2, 1788 N.Y. Laws 664 (codified at 2 N. Y. Laws 242)
(Jones & Varick 1789). In 1828, New York changed the common law offense
of assisting suicide from murder to manslaughter in the first degree.
See 2 N. Y. Rev. Stat. pt. 4, ch. 1, tit. 2, art. 1, Section(s) 7, p.
661 (1829). In 1881, New York adopted a new penal code making attempted
suicide a crime punishable by two years in prison, a fine, or both, and
retaining the criminal prohibition against assisting suicide as manslaughter
in the first degree. Act of July 26, 1881, ch. 676, 172-178, 1881 N. Y.
Laws (3 Penal Code), pp. 42-43 (codified at 4 N. Y. Consolidated Laws,
Penal Law Section(s) 2300 to 2306, pp. 2809-2810 (1909)). In 1919, New
York repealed the statutory provision making attempted suicide a crime.
See Act of May 5, 1919, ch. 414, Section(s) 1, 1919 N.Y. Laws 1193. The
1937 New York Report of the Law Revision Commission found that the history
of the ban on assisting suicide was "traceable into the ancient common
law when a suicide or felo de se was guilty of crime punishable by forfeiture
of his goods and chattels." State of New York, Report of the Law
Revision Commission for 1937, p. 830. The Report stated that since New
York had removed "all stigma [of suicide] as a crime" and that
"[s]ince liability as an accessory could no longer hinge upon the
crime of a principal, it was necessary to define it as a substantive offense."
Id., at 831. In 1965, New York revised its penal law, providing that a
"person is guilty of manslaughter in the second degree when . . .
he intentionally causes or aids another person to commit suicide."
Penal Law, ch. 1030, 1965 N.Y. Laws at 2387 (codified at N. Y. Penal Law
Section(s) 125.15(3) (McKinney 1975)).
[199] Washington's first territorial legislature designated assisting
another "in the commission of self-murder" to be manslaughter,
see Act of Apr. 28, 1854, Section(s) 17, 1854 Wash. Laws 78, and re-enacted
the provision in 1869 and 1873, see Act of Dec. 2, 1869, Section(s) 17,
1869 Wash. Laws 201; Act of Nov. 10, 1873, Section(s) 19, 1873 Wash. Laws
184 (codified at Wash. Code Section(s) 794 (1881)). In 1909, the state
legislature enacted a law based on the 1881 New York law and a similar
one enacted in Minnesota, see Marzen, O'Dowd, Crone, & Balch, 24 Duquesne
L. Rev., at 206, making attempted suicide a crime punishable by two years
in prison or a fine, and retaining the criminal prohibition against assisting
suicide, designating it manslaughter. See Criminal Code, ch. 249, Section(s)
133-137, 1909 Wash. Laws, 11th Sess. 890, 929 (codified at Remington &
Ballinger's Wash. Code Section(s) 2385-2389 (1910)). In 1975, the Washington
Legislature repealed these provisions, see Wash. Crim. code, 1975, ch.
260, Section(s) 9A.92.010 (213-217) 1975 Wash. Laws 817, 858, 866, and
enacted the ban on assisting suicide at issue in this case, see Wash.
Crim. code, 1975, ch. 260, Section(s) 9A.36.060 1975 Wash. Laws 817, 836,
codified at Rev. Wash. Code Section(s) 9A.36.060 (1977). The decriminalization
of attempted suicide reflected the view that a person compelled to attempt
it should not be punished if the attempt proved unsuccessful. See Compassion
in Dying v. Washington, 850 F. Supp. 1454, 1464, n. 9 (WD Wash. 1994)
(citing Legislative Council Judiciary Committee, Report on the Revised
Washington Criminal Code 153 (Dec. 3, 1970).
[200] *fn54 Numerous States have enacted statutes prohibiting assisting
a suicide. See, e.g., Alaska Stat. Ann. Section(s) 11.41.120(a)(2) (1996);
Ariz. Rev. Stat. Ann. Section(s) 13-1103(A)(3) (West Supp. 1996-1997);
Ark. Code Ann. Section(s) 5-10-104(a)(2) (1993); Cal. Penal Code Ann.
Section(s) 401 (West 1988); Colo. Rev. Stat. Section(s) 18-3-104(1)(b)
(Supp. 1996); Conn. Gen. Stat. Section(s) 53a-56(a)(2) (1997); Del. Code
Ann. Tit. 11, Section(s) 645 (1995); Fla. Stat. Section(s) 782.08 (1991);
Ga. Code Ann. Section(s) 16-5-5(b) (1996); Haw. Rev. Stat. Section(s)
707-702(1)(b) (1993); Ill. Comp. Stat., ch. 720, Section(s) 5/12-31 (1993);
Ind. Stat. Ann. Section(s) 35-42-1-2 to 35-42-1-2.5 (1994 and Supp. 1996);
Iowa Code Ann. Section(s) 707A.2 (West Supp. 1997); Kan. Stat. Ann. Section(s)
21-3406 (1995); Ky. Rev. Stat. Ann. Section(s) 216.302 (Michie 1994);
La. Rev. Stat. Ann. Section(s) 14:32.12 (West Supp. 1997); Me. Rev. Stat.
Ann., Tit. 17-A, Section(s) 204 (1983); Mich. Comp. Laws Ann. Section(s)
752.1027 (West Supp. 1997-1998); Minn. Stat. Section(s) 609.215 (1996);
Miss. Code Ann. Section(s) 97-3-49 (1994); Mo. Stat. Section(s) 565.023.1(2)
(1994); Mont. Code Ann. Section(s) 45-5-105 (1995); Neb. Rev. Stat. Section(s)
28-307 (1995); N. H. Rev. Stat. Ann. Section(s) 630:4 (1996); N. J. Stat.
Ann. Section(s) 2C:11-6 (West 1995); N. M. Stat. Ann. Section(s) 30-2-4
(1996); N. Y. Penal Law Section(s) 120.30 (McKinney 1987); N. D. Cent.
Code Section(s) 12.1-16-04 (Supp. 1995); Okla. Stat. Tit. 21, Section(s)
813-815 (1983); Ore. Rev. Stat. Section(s) 163.125(1)(b) (1991); Pa. Cons.
Stat. Ann., Tit. 18 Purdon Section(s) 2505 (1983); R. I. Gen. Laws Section(s)
11-60-1 through 11-60-5 (Supp. 1996); S. D. Codified Laws Section(s) 22-16-37
(1988); Tenn. Code Ann. Section(s) 39-13-216 (Supp. 1996); Tex. Penal
Code Ann. Section(s) 22.08 (1994); Wash. Rev. Code Section(s) 9A.36.060
(1994); Wis. Stat. Section(s) 940.12 (1993-1994). See also P. R. Law Ann.,
Tit. 33, Section(s) 4009 (1984).
[201] *fn55 Other States have enacted similar provisions, some categorically
authorizing such pain treatment, see, e.g., Ind. Code Ann. Section(s)
35-42-1-2.5(a)(1) (Supp. 1996) (ban on assisted suicide does not apply
to licensed health care provider who administers or dispenses medications
or procedures to relieve pain or discomfort, even if such medications
or procedures hasten death, unless provider intends to cause death); Iowa
Code Ann. Section(s) 707A.3.1 (West Supp. 1997) (same); Ky. Rev. Stat.
Ann. Section(s) 216.304 (Michie 1997) (same); Minn. Stat. Ann. Section(s)
609.215(3) (West Supp. 1997) (same); Ohio Rev. Code Ann. Section(s) 2133.11(A)(6),
2133.12(E)(1) (1994); R. I. Gen. Laws Section(s) 11-60-4 (Supp. 1996)
(same); S. D. Codified Laws Section(s) 22-16-37.1 (Supp. 1997); see Mich.
Comp. Laws Ann. Section(s) 752.1027(3) (West Supp. 1997); Tenn. Code Ann.
Section(s) 39-13-216(b)(2) (1996); others permit patients to sign health-care
directives in which they authorize pain treatment even if it hastens death.
See, e.g., Me. Rev. Stat. Ann., Tit. 18-A, Section(s) 5-804, 5-809 (1996);
N. M. Stat. Ann. Section(s) 24-7A-4, 24-7A-9 (Supp. 1995); S. C. Code
Ann. Section(s) 62-5-504 (Supp. 1996); Va. Code Ann. Section(s) 54.1-2984,
4.1-2988 (1994).
[202] *fn56 While it is also more difficult to assess in cases involving
limitations on life incidental to pain medication and the disconnection
of artificial life support, there are reasons to justify a lesser concern
with the punctilio of responsibility in these instances. The purpose of
requesting and giving the medication is presumably not to cause death
but to relieve the pain so that the State's interest in preserving life
is not unequivocally implicated by the practice; and the importance of
pain relief is so clear that there is less likelihood that relieving pain
would run counter to what a responsible patient would choose, even with
the consequences for life expectancy. As for ending artificial life support,
the State again may see its interest in preserving life as weaker here
than in the general case just because artificial life support preserves
life when nature would not; and, because such life support is a frequently
offensive bodily intrusion, there is a lesser reason to fear that a decision
to remove it would not be the choice of one fully responsible. Where,
however, a physician writes a prescription to equip a patient to end life,
the prescription is written to serve an affirmative intent to die (even
though the physician need not and probably does not characteristically
have an intent that the patient die but only that the patient be equipped
to make the decision). The patient's responsibility and competence are
therefore crucial when the physician is presented with the request.
[203] *fn57 Again, the same can be said about life support and shortening
life to kill pain, but the calculus may be viewed as different in these
instances, as noted just above.
***** END FOOTNOTE(S) HERE *****
[Editor's note: Illustrations from the original opinion, if any, are
available in the print version]
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