A federal appeals court ruled March 6, 1996, that the state of Washington's ban on doctor-assisted suicide was unconstitutional. The case was the first of its kind to be decided by a full federal appeals court. Judge Richard Reinhardt of the Ninth Circuit Court of Appeals said the state's ban violates the rights of a mentally competent, terminally ill adult to have "a dignified and humane death."

Cite as 96 C.D.O.S. 1507

COMPASSION IN DYING, a Washington nonprofit corporation; JANE ROE;
JOHN DOE; JAMES POE, HAROLD GLUCKSBERG, M.D.,
Plaintiffs-Appellees,

v.

STATE OF WASHINGTON; CHRISTINE GREGOIRE, Attorney General of
Washington, Defendants-Appellants.

No. 94-35534

United States Court of Appeals for the Ninth Circuit

D.C. No. CV-94-119-BJR

Appeal from the United States District Court for the Western
District of Washington Barbara J. Rothstein, Chief District Judge,
Presiding

Argued and Submitted December 7, 1994--Seattle, Washington

Argued and Submitted October 26, 1995--San Francisco, California

Before: James R. Browning, Procter Hug, Jr., Mary M. Schroeder,
Betty B. Fletcher, Harry Pregerson, Stephen Reinhardt, Robert R.
Beezer, Charles Wiggins, David R. Thompson, Ferdinand F.
Fernandez, and Andrew J. Kleinfeld, Circuit Judges.

COUNSEL

William L. Williams Sr., Assistant Attorney General, Olympia,
Washington, for the defendants-appellants.

Kathyrn L. Tucker (argued), David J. Burman, Thomas L. Boeder,
Kari Anne Smith, Perkins Coie, Seattle, Washington, for the
plaintiffs-appellees.

Wesley J. Smith, San Francisco, California, for amicus curiae
International Anti-Euthanasia Task Force.

Katrin E. Frank, Robert A. Free, Kathleen Wareham, MacDonald,
Hoague & Bayless, Seattle, Washington, for amicus curiae Ten
Surviving Family Members.

James Bopp, Jr., Thomas J. Marzen, Daniel Avila, John Altomare,
Jane E.T. Brockman, National Legal Center for the Medically
Dependent and Disabled, Inc., Indianapolis, Indiana, as amicus
curiae.

John R. Reese, Robert A. Lewis, Page R. Barnes, Amy J. Metzler,
Holly Morris, McCuthchen, Doyle, Brown & Enersen, San Francisco,
California, for amicus curiae Americans for Death with Dignity.

Mary D. Clement, Junction City, Oregon, for amicus curiae
Euthanasia Research & Guidance Organization.

Mark E. Chopko, Michael F. Moses, Washington, D.C., for amicus
curiae United States Catholic Conference.

Paul Benjamin Linton, Clarke D. Forsythe, Americans United for
Life, Chicago, Illinois, for amici curiae, Washington State
Legislators.

Barbara Allan Shickich, Joseph E. Shickich, Jr., Riddell,
Williams, Bullitt & Walkinshaw, Seattle, Washington, for amicus
curiae Washington State Hospital Association and Catholic Health
Association of the United States.

Catherine W. Smith, Edwards, Sieh, Wiggins & Hathaway, Seattle,
Washington, for amicus curiae Amici State Legislators.

Todd Maybrown, Allen, Hansen & Maybrown, Seattle, Washington, for
amici curiae the American Civil Liberties Union of Washington, the
Northwest Women's Law Center, Lambda Legal Defense and Education
Fund, Inc., AIDS Action Council, the Northwest AIDS Foundation,
the Seattle AIDS Support Group, the Gray Panthers Project Fund,
the Older Women's League, the Seattle Chapter of the National
Organization for Women, the American Humanist Association, the
National Lawyers Guild, Local 6 of the Service Employees
International Union, Temple De Hirsch Sinai, the Unitarian
Universalist Association, the Seattle Chapter and the Pacific
Northwest District Council of the Japanese American Citizens
League.

Kirk B. Johnson, Michael L. Ile, David Orentlicher, Jack R.
Bierig, Sidley & Austin, Chicago, Illinois, Paul E. Kalb, Sidley &
Austin, Washington, D.C., for amicus curiae American Medical
Association.

Filed March 9, 1995

Order Granting Rehearing En Banc August 1, 1995

Filed March 6, 1996

REINHARDT, Circuit Judge:

I.

This case raises an extraordinarily important and difficult issue.
It compels us to address questions to which there are no easy or
simple answers, at law or otherwise. It requires us to confront
the most basic of human concerns -- the mortality of self and
loved ones -- and to balance the interest in preserving human life
against the desire to die peacefully and with dignity. People of
good will can and do passionately disagree about the proper
result, perhaps even more intensely than they part ways over the
constitutionality of restricting a woman's right to have an
abortion. Heated though the debate may be, we must determine
whether and how the United States Constitution applies to the
controversy before us, a controversy that may touch more people
more profoundly than any other issue the courts will face in the
foreseeable future.

Today, we are required to decide whether a person who is
terminally ill has a constitutionally-protected liberty interest
in hastening what might otherwise be a protracted, undignified,
and extremely painful death. If such an interest exists, we must
next decide whether or not the state of Washington may
constitutionally restrict its exercise by banning a form of
medical assistance that is frequently requested by terminally ill
people who wish to die. We first conclude that there is a
constitutionally-protected liberty interest in determining the
time and manner of one's own death, an interest that must be
weighed against the state's legitimate and countervailing
interests, especially those that relate to the preservation of
human life. After balancing the competing interests, we conclude
by answering the narrow question before us: We hold that insofar
as the Washington statute prohibits physicians from prescribing
life-ending medication for use by terminally ill, competent adults
who wish to hasten their own deaths, it violates the Due Process
Clause of the Fourteenth Amendment.

II.

Preliminary Matters and History of the Case

This is the first right-to-die case that this court or any other
federal court of appeals has ever decided.[FOOTNOTE 1] The
plaintiffs are four physicians who treat terminally ill patients,
three terminally ill patients, and a Washington non-profit
organization called Compassion In Dying.[FOOTNOTE 2] The four
physicians -- Dr. Harold Glucksberg, Dr. Thomas A. Preston, Dr.
Abigail Halperin, and Dr. Peter Shalit -- are respected doctors
whose expertise is recognized by the state. All declare that they
periodically treat terminally ill, competent adults who wish to
hasten their deaths with help from their physicians. The doctors
state that in their professional judgment they should provide that
help but are deterred from doing so by a Washington statute that
makes it a felony to knowingly aid another person to commit
suicide.

Under the Washington statute, aiding a person who wishes to end
his life constitutes a criminal act and subjects the aider to the
possibility of a lengthy term of imprisonment, even if the
recipient of the aid is a terminally ill, competent adult and the
aider is a licensed physician who is providing medical assistance
at the request of the patient. The Washington statute provides in
pertinent part: "A person is guilty of promoting a suicide when he
knowingly causes or aids another person to attempt suicide." RCW
9A.36.060 (emphasis added). A violation of the statute constitutes
a felony punishable by imprisonment for a maximum of five years
and a fine of up to $10,000. RCW 9A.36.060(2) and 9A.20.020(1)(c).

On appeal, the four plaintiff-doctors asserted the rights of
terminally ill, competent adult patients who wished to hasten
their deaths with the help of their physicians so that they might
die peacefully and with dignity. That group included the three
patient-plaintiffs. The district court described the
patient-plaintiffs, each of whom desired to obtain prescription
drugs to hasten his death, as follows:

Jane Roe is a 69-year-old retired pediatrician who has suffered
since 1988 from cancer which has now metastasized throughout her
skeleton. Although she tried and benefitted temporarily from
various treatments including chemotherapy and radiation, she is
now in the terminal phase of her disease. In November 1993, her
doctor referred her to hospice care. Only patients with a life
expectancy of less than six months are eligible for such care.

Jane Roe has been almost completely bedridden since June of 1993
and experiences constant pain, which becomes especially sharp and
severe when she moves. The only medical treatment available to her
at this time is medication, which cannot fully alleviate her pain.
In addition, she suffers from swollen legs, bed sores, poor
appetite, nausea and vomiting, impaired vision, incontinence of
bowel, and general weakness.

Jane Roe is mentally competent and wishes to hasten her death by
taking prescribed drugs with the help of Plaintiff Compassion in
Dying. In keeping with the requirements of that organization, she
has made three requests for its members to provide her and her
family with counseling, emotional support, and any necessary
ancillary drug assistance at the time she takes the drugs.

John Doe is a 44-year-old artist dying of AIDS. Since his
diagnosis in 1991, he has experienced two bouts of pneumonia,
chronic, severe skin and sinus infections, grand mal seizures and
extreme fatigue. He has already lost 70% of his vision to
cytomegalovirus retinitis, a degenerative disease which will
result in blindness and rob him of his ability to paint. His
doctor has indicated that he is in the terminal phase of his
illness.

John Doe is especially cognizant of the suffering imposed by a
lingering terminal illness because he was the primary caregiver
for his long-term companion who died of AIDS in June of 1991. He
also observed his grandfather's death from diabetes preceded by
multiple amputations as well as loss of vision and hearing. Mr.
Doe is mentally competent, understands there is no cure for AIDS
and wants his physician to prescribe drugs which he can use to
hasten his death.

James Poe is a 69-year-old retired sales representative who
suffers from emphysema, which causes him a constant sensation of
suffocating. He is connected to an oxygen tank at all times, and
takes morphine regularly to calm the panic reaction associated
with his feeling of suffocation. Mr. Poe also suffers from heart
failure related to his pulmonary disease which obstructs the flow
of blood to his extremities and causes severe leg pain. There are
no cures for his pulmonary and cardiac conditions, and he is in
the terminal phase of his illness. Mr. Poe is mentally competent
and wishes to commit suicide by taking physician-prescribed drugs.

Compassion In Dying, 850 F. Supp. at 1456-57.

The names of the patients are pseudonymous in order to protect
their privacy. All three patients died after the case began. Two
had died by the time the District Court issued its decision. See
Compassion In Dying v. State of Washington, 850 F.Supp. 1454, 1456
n.2 (W.D. Wash. 1994). The other died prior to the date of the
decision by the three-judge panel of this court. Compassion In
Dying v. State of Washington, 49 F.3d 586, 588 (9th Cir. 1995).

Since the District Court properly granted the physicians standing
to assert the rights of their terminally ill patients in general,
850 F.Supp. at 1467, it is clear that this case was not rendered
moot by the death of the three named patients. The physicians meet
both Article III and jurisprudential standing requirements. See
Singleton v. Wulff, 428 U.S. 106, 116-17 (1976) (holding that
doctors had standing to challenge -- on behalf of women patients
in general -- a Missouri law banning Medicaid reimbursement for
abortions that were not medically required). See also Doe v.
Bolton, 410 U.S. 179, 188 (1973) (holding that physicians,
asserting the rights of their patients, have standing to challenge
the constitutionality of a criminal abortion statute even though
"the record does not disclose that any one of them has been
prosecuted, or threatened with prosecution, for violation of the
State's abortion statutes"); Planned Parenthood of Cent. Mo. v.
Danforth, 428 U.S. 52, 62 (1976) (same). Although there is some
ambiguity in Bolton as to whether the physicians were asserting
their own rights or the rights of their patients, the Court in
Singleton, after discussing Griswold v. Connecticut, 381 U.S. 479
(1965), described Bolton as a case "where the Court also permitted
physicians to assert the rights of their patients."[FOOTNOTE 3]

The doctors in Bolton were held to have standing to assert their
patients' rights even though the doctors had never been threatened
with prosecution. The doctors here also meet the standing
requirements because they run a severe risk of prosecution under
the Washington statute, which proscribes the very conduct in which
they seek to engage. The state has never indicated that it would
not prosecute doctors who violate that law. See Babbitt v. United
Farm Workers National Union, 442 U.S. 289 (1979) (holding that
plaintiff does not have to risk arrest or prosecution in order to
have standing to challenge the constitutionality of a criminal
statute). See also Planned Parenthood of Cent. Mo., 428 U.S. at
62; Bolton, 410 U.S. at 188 (saying that the "physician is the one
against whom these criminal statutes directly operate" and that
the "physician-appellants, therefore, assert a sufficiently direct
threat of personal detriment . . . . [and] should not be required
to await and undergo a criminal prosecution as the sole means of
seeking relief").

We need not decide whether, the deaths of the three
patient-plaintiffs would negate the ability of their lawyers to
continue the challenge that those patients brought while they were
still alive. See Southern Pacific Terminal Co. v. ICC, 219 U.S.
498, 515 (1911) (holding a case is not moot when the controversy
is capable of repetition yet evading review). We note, however,
that in invoking the capable-of-repetition-yet-evading-review
doctrine in Roe v. Wade, 410 U.S. 113 (1973), the Court
specifically relied, in part, on the fact that other women would
become pregnant.[FOOTNOTE 4] The Court said:

[W]hen, as here, pregnancy is a significant fact in the
litigation, the normal 266-day human gestation period is so short
that the pregnancy will come to term before the usual appellate
procedure is complete. If that termination makes a case moot,
pregnancy litigation will seldom survive much beyond the trial
stage, and appellate review will be effectively denied. Our law
should not be that rigid. Pregnancy often comes more than once to
the same woman, and in the general population, if man is to
survive, it will always be with us.

Roe, 410 U.S. at 125 (emphasis added). So, too, unfortunately,
will terminal illness.[FOOTNOTE 5]

The District Court in this case reached only claims asserted by
two of the three categories of plaintiffs: the patients' claims
that they had a right to receive medical assistance from their
physicians and the claims that the physicians asserted on behalf
of their patients. It did not address the claim asserted by
Compassion In Dying. Nor, correlatively, did it reach the claim by
the terminally ill patients that they had a right to receive
assistance from organizations such as Compassion In Dying.

Like the District Court, we decide only claims brought by the
terminally ill patients and the doctors.[FOOTNOTE 6] We consider
those claims to the extent that they relate to the provision of
certain medical assistance to terminally ill persons by physicians
or persons acting pursuant to their authorization or direction.
The claims involving Compassion In Dying are not before us. The
district court suggested that it would reach those additional
claims at a later stage in the proceedings if Compassion In Dying
so desired. We have jurisdiction over this appeal from partial
summary judgment because the district court certified the appeal
at the request of both parties under Federal Rule of Civil
Procedure 54(b).

The plaintiffs do not challenge Washington statute RCW 9A.36.060
in its entirety. Specifically they do not object to the portion of
the Washington statute that makes it unlawful for a person
knowingly to cause another to commit suicide. Rather, they only
challenge the statute's "or aids" provision. They challenge that
provision both on its face and as applied to terminally ill,
mentally competent adults who wish to hasten their own deaths with
the help of medication prescribed by their doctors.[FOOTNOTE 7]
The plaintiffs contend that the provision impermissibly prevents
the exercise by terminally ill patients of a
constitutionally-protected liberty interest in violation of the
Due Process Clause of the Fourteenth Amendment, and also that it
impermissibly distinguishes between similarly situated terminally
ill patients in violation of the Equal Protection Clause.

In an extremely thoughtful opinion, Chief District Judge Barbara
Rothstein held that "a competent, terminally ill adult has a
constitutionally guaranteed right under the Fourteenth Amendment
to commit physician-assisted suicide." 850 F. Supp. at 1462.
Ruling on cross-motions for summary judgment, the District Court
concluded that the Washington statute places an undue burden on
the exercise of that constitutionally-protected liberty interest.
Id. at 1465. The District Court held that the Washington law also
violates the Equal Protection Clause because it impermissibly
treats similarly situated groups of terminally ill patients
differently. Id. at 1467. Although the scope of the relief the
District Judge ordered is not clear, id. 1456, 1459, 1462-1464,
1467, it appears that she declared the statute invalid only
insofar as it applies to the prescription of medication to
terminally ill competent adults who wish to hasten their deaths --
or, to use the district court's precise terminology, only insofar
as it applies to "physician-assisted suicide," id. at
1467.[FOOTNOTE 8]

On appeal, a three-judge panel of this court voted 2-1 to reverse
the district court decision. Compassion In Dying v. State of
Washington, 49 F.3d 586 (9th Cir. 1995). The majority held that
there is no due process liberty interest in physician-assisted
suicide. It also concluded that the Washington statute does not
violate the Equal Protection Clause. Accordingly, the majority
held that the statute is not invalid facially or as applied. Judge
Wright dissented and would have held that the statute is invalid
as applied to terminally ill, mentally competent adults because it
violates their privacy and equal protection rights. Id. at 594,
597 (Wright, J., dissenting). Because of the extraordinary
importance of this case, we decided to rehear it en banc.
Compassion In Dying v. State of Wash., 62 F.3d 299 (9th Cir.
1995).

We now affirm the District Court's decision and clarify the scope
of the relief. We hold that the "or aids" provision of Washington
statute RCW 9A.36.060, as applied to the prescription of
life-ending medication for use by terminally ill, competent adult
patients who wish to hasten their deaths, violates the Due Process
Clause of the Fourteenth Amendment.[FOOTNOTE 9] Accordingly, we
need not resolve the question whether that provision, in
conjunction with other Washington laws regulating the treatment of
terminally ill patients,[FOOTNOTE 10] also violates the Equal
Protection Clause.

III.

Overview of Legal Analysis: Is There a Due Process Violation?

In order to answer the question whether the Washington statute
violates the Due Process Clause insofar as it prohibits the
provision of certain medical assistance to terminally ill,
competent adults who wish to hasten their own deaths, we first
determine whether there is a liberty interest in choosing the time
and manner of one's death -- a question sometimes phrased in
common parlance as: Is there a right to die? Because we hold that
there is, we must then determine whether prohibiting physicians
from prescribing life-ending medication for use by terminally ill
patients who wish to die violates the patients' due process
rights.

The mere recognition of a liberty interest does not mean that a
state may not prohibit the exercise of that interest in particular
circumstances, nor does it mean that a state may not adopt
appropriate regulations governing its exercise. Rather, in cases
like the one before us, the courts must apply a balancing test
under which we weigh the individual's liberty interests against
the relevant state interests in order to determine whether the
state's actions are constitutionally permissible. As Chief Justice
Rehnquist, writing for the Court, explained in Cruzan v. Director,
Missouri Dept. of Health, 497 U.S. 261 (1990), the only
right-to-die case that the Court has heretofore considered:

[D]etermining that a person has a "liberty interest" under the Due
Process Clause does not end our inquiry; "whether respondent's
constitutional rights have been violated must be determined by
balancing his liberty interests against the relevant state
interests." Youngberg v. Romeo, 457 U.S. 307, 321, 102 S.Ct. 2452,
2461, 73 L.Ed.2d 28, (1982); See also Mills v. Rogers, 457 U.S.
291, 299, 102 S.Ct. 2442, 2448, 73 L.Ed. 2d 16 (1982).

Cruzan, 497 U.S. at 279 (footnote omitted).

The Court has invoked a balancing test in a number of substantive
due process cases, not just in the right-to-die context. For
example, as the Cruzan Court noted, the Court applied a balancing
test in Youngberg  and Mills, liberty interest cases involving the
right to refuse medical treatment. Youngberg addressed the rights
of patients involuntarily committed to state mental institutions.
The Court said: "In determining whether a substantive right
protected by the Due Process Clause has been violated, it is
necessary to balance the liberty of the individual and the demands
of organized society." Youngberg, 457 U.S. at 320 (internal
citation and quotation omitted). Mills addressed the question of
the right of mental patients to refuse treatment with
antipsychotic drugs. There, the Court stated explicitly that the
"state interests" are "to be balanced against an individual's
liberty interests." 457 U.S. at 304. As the Cruzan Court also
noted, the use of a balancing test is deeply rooted in our legal
traditions. The Court has been applying a balancing test in
substantive due process cases at least since 1905, when in
Jacobsen v. Massachusetts, 197 U.S. 11 (1905), "the Court balanced
an individual's liberty interest in declining an unwanted smallpox
vaccine against the State's interest in preventing disease."
Cruzan, 497 U.S. at 278.

As Justice O'Connor explained in her concurring opinion in Cruzan,
the ultimate question is whether sufficient justification exists
for the intrusion by the government into the realm of a person's
"liberty, dignity, and freedom." Cruzan, 497 U.S. at 287, 289
(O'Connor, J., concurring). If the balance favors the state, then
the given statute -- whether it regulates the exercise of a due
process liberty interest or prohibits that exercise to some degree
-- is constitutional. If the balance favors the individual, then
the statute -- whatever its justifications -- violates the
individual's due process liberty rights and must be declared
unconstitutional, either on its face or as applied. Here, we
conclude unhesitatingly that the balance favors the individual's
liberty interest.[FOOTNOTE 11]

IV.

Is There a Liberty Interest?

Before beginning our inquiry into whether a liberty interest
exists, we reiterate a few fundamental precepts that guide us. The
first lies in the Court's cautionary note in Roe v. Wade, 410 U.S.
113, 116 (1973):

We forthwith acknowledge our awareness of the sensitive and
emotional nature of the . . . controversy, of the vigorous
opposing views, even among physicians, and of the deep and
seemingly absolute convictions that the subject inspires. One's
philosophy, one's experiences, one's exposure to the raw edges of
human existence, one's religious training, one's attitude toward
life and family and their values, and the moral standards one
establishes and seeks to observe, are all likely to influence and
to color one's thinking and conclusions . . . .

Like the Roe Court, we endeavor to conduct an objective analysis
of a most emotionally-charged of topics. In doing so, we bear in
mind the second Justice Harlan's admonition in his now-vindicated
dissent in Poe v. Ullman, 367 U.S. 497, 543 (1961) (Harlan, J.,
dissenting from dismissal on jurisdictional grounds):

[T]he full scope of the liberty guaranteed by the Due Process
Clause cannot be found in or limited by the precise terms of the
specific guarantees elsewhere in the Constitution. This 'liberty'
is not a series of isolated points pricked out in terms of the
taking of property; the freedom of speech, press, and religion;
the right to keep and bear arms; the freedom from unreasonable
searches and seizures; and so on. It is a rational continuum
which, broadly speaking, includes a freedom from all substantial
arbitrary impositions and purposeless restraints, . . . and which
also recognizes, what a reasonable and sensitive judgment must,
that certain interests require particularly careful scrutiny of
the state needs asserted to justify their abridgment.

Applying Justice Harlan's teaching, we must strive to resist the
natural judicial impulse to limit our vision to that which can
plainly be observed on the face of the document before us, or even
that which we have previously had the wisdom to recognize.

Most important, we undertake our difficult task with a profound
respect for the noble objectives of the Constitution, as described
by Justice Brandeis in the second most famous dissent in American
jurisprudence.[FOOTNOTE 12] In Olmstead v. United States, 277 U.S.
438 (1928), Justice Brandeis wrote, and his words have since been
quoted in full in several opinions of the Court and in innumerable
appellate court decisions:

The makers of our Constitution undertook to secure conditions
favorable to the pursuit of happiness. They recognized the
significance of man's spiritual nature, of his feelings and of his
intellect. They knew that only a part of the pain, pleasure and
satisfaction of life are to be found in material things. They
sought to protect Americans in their beliefs, their thoughts,
their emotions and their sensations. They conferred, as against
the government, the right to be let alone -- the most
comprehensive of rights, and the right most valued by civilized
men.

Id. at 478 (Brandeis, J., dissenting).

In examining whether a liberty interest exists in determining the
time and manner of one's death, we begin with the compelling
similarities between right-to-die cases and abortion cases. In the
former as in the latter, the relative strength of the competing
interests changes as physical, medical, or related circumstances
vary. In right-to-die cases the outcome of the balancing test may
differ at different points along the life cycle as a person's
physical or medical condition deteriorates, just as in abortion
cases the permissibility of restrictive state legislation may vary
with the progression of the pregnancy.[FOOTNOTE 13] Equally
important, both types of cases raise issues of life and death, and
both arouse similar religious and moral concerns. Both also
present basic questions about an individual's right of choice.

Historical evidence shows that both abortion and assisted suicide
were for many years condemned, but that the efforts to prevent
people from engaging in the condemned conduct were always at most
only partially successful. Even when prohibited, abortions and
assisted-suicides flourished in back alleys, in small street-side
clinics, and in the privacy of the bedroom. Deprived of the right
to medical assistance, many pregnant women and terminally ill
adults ultimately took matters into their own hands, often with
tragic consequences.

Because they present issues of such profound spiritual importance
and because they so deeply affect individuals' right to determine
their own destiny, the abortion and right-to-die cases have given
rise to a highly emotional and divisive debate. In many respects,
the legal arguments on both sides are similar, as are the
constitutional principles at issue.

In deciding right-to-die cases, we are guided by the Court's
approach to the abortion cases. Casey in particular provides a
powerful precedent, for in that case the Court had the opportunity
to evaluate its past decisions and to determine whether to adhere
to its original judgment. Although Casey was influenced by the
doctrine of stare decisis, the fundamental message of that case
lies in its statements regarding the type of issue that confronts
us here: "These matters, involving the most intimate and personal
choices a person may make in a lifetime, choices central to
personal dignity and autonomy, are central to the liberty
protected by the Fourteenth Amendment." Casey, 112 S.Ct. at 2807.

A.

Defining the Liberty Interest and Other Relevant Terms

The majority opinion of the three-judge panel that first heard
this case on appeal defined the claimed liberty interest as a
"constitutional right to aid in killing oneself." Compassion In
Dying, 49 F.3d at 591 (emphasis added). However, the subject we
must initially examine is not nearly so limited. Properly
analyzed, the first issue to be resolved is whether there is a
liberty interest in determining the time and manner of one's
death. We do not ask simply whether there is a liberty interest in
receiving "aid in killing oneself" because such a narrow interest
could not exist in the absence of a broader and more important
underlying interest -- the right to die. In short, it is the end
and not the means that defines the liberty interest.

The broader approach we employ in defining the liberty interest is
identical to the approach used by the Supreme Court in the
abortion cases. In those cases, the Court initially determined
whether a general liberty interest existed (an interest in having
an abortion), not whether there was an interest in implementing
that general liberty interest by a particular means (with medical
assistance). Specifically, in Roe v. Wade, 410 U.S. 113 (1973),
the Court determined that women had a liberty interest in securing
an abortion, not that women had a liberty interest in obtaining
medical assistance for purpose of an abortion. The Court did so
even though the Texas statute at issue did not prohibit a woman
from inducing her own abortion; nor did it criminalize a woman's
conduct in securing an abortion. Rather, the Texas statute, like
the Washington statute here, prohibited the rendering of
assistance; specifically, the Texas statute prohibited only
assisting a woman to secure an abortion. Roe, 410 U.S. at 151-52.
The Court first determined that a woman had a constitutional right
to choose an abortion. Only after it did so, did it proceed to the
second step: to determine whether the state's prohibition on
assistance unconstitutionally restricted the exercise of that
liberty interest. Similarly, in Planned Parenthood v. Casey, 112
S.Ct. 2791 (1992), the Court first reaffirmed, after extensive
analysis, its earlier holding that women have a liberty interest
in obtaining an abortion. In determining the existence of that
liberty interest, the Court did not address the subject of spousal
notification. As in Roe, only after affirming a woman's right to
have an abortion, did the Court proceed to the second step: to
examine whether the statutory provision requiring married women to
notify their spouses prior to obtaining an abortion posed an undue
burden on the exercise of that liberty interest. In this case, our
analysis is necessarily the same. First we must determine whether
there is a liberty interest in determining the time and manner of
one's death; if so, we must then examine whether Washington's ban
on assisted suicide unconstitutionally restricts the exercise of
that liberty interest.

While some people refer to the liberty interest implicated in
right-to-die cases as a liberty interest in committing suicide, we
do not describe it that way. We use the broader and more accurate
terms, "the right to die," "determining the time and manner of
one's death," and "hastening one's death" for an important reason.
The liberty interest we examine encompasses a whole range of acts
that are generally not considered to constitute "suicide."
Included within the liberty interest we examine, is for example,
the act of refusing or terminating unwanted medical treatment. As
we discuss later at pp. 3179-3180, a competent adult has a liberty
interest in refusing to be connected to a respirator or in being
disconnected from one, even if he is terminally ill and cannot
live without mechanical assistance. The law does not classify the
death of a patient that results from the granting of his wish to
decline or discontinue treatment as "suicide." Nor does the law
label the acts of those who help the patient carry out that wish,
whether by physically disconnecting the respirator or by removing
an intravenous tube, as assistance in suicide. Accordingly, we
believe that the broader terms -- "the right to die," "controlling
the time and manner of one's death," and "hastening one's death"
-- more accurately describe the liberty interest at issue here.
Moreover, as we discuss later, we have serious doubts that the
terms "suicide" and "assisted suicide" are appropriate legal
descriptions of the specific conduct at issue here. See infra
3185-3186.

There is one further definitional matter we should emphasize.
Following our determination regarding the existence of a liberty
interest in hastening one's death, we examine whether the
Washington statute unconstitutionally infringes on that liberty
interest. Throughout that examination, we use the term
"physician-assisted suicide," a term that does not appear in the
Washington statute but is frequently employed in legal and medical
discussions involving the type of question before us. For purposes
of this opinion, we use physician-assisted suicide as it is used
by the parties and district court and as it is most frequently
used: the prescribing of medication by a physician for the purpose
of enabling a patient to end his life.[FOOTNOTE 14] It is only
that conduct that the plaintiffs urge be held
constitutionally-protected in this case.[FOOTNOTE 15]

B.

The Legal Standard

There is no litmus test for courts to apply when deciding whether
or not a liberty interest exists under the Due Process Clause. Our
decisions involve difficult judgments regarding the conscience,
traditions, and fundamental tenets of our nation. We must
sometimes apply those basic principles in light of changing values
based on shared experience. Other times we must apply them to new
problems arising out of the development and use of new
technologies. In all cases, our analysis of the applicability of
the protections of the Constitution must be made in light of
existing circumstances as well as our historic traditions.

Historically, the Court has classified "fundamental rights" as
those that are "implicit in the concept of ordered liberty," Palko
v. Connecticut, 302 U.S. 319, 325-26 (1937). The Court reasserted
this historic standard, along with an alternative description, in
its highly controversial Bowers v. Hardwick opinion, 478 U.S. 186,
191-92 (1986):[FOOTNOTE 16]

Striving to assure itself and the public that announcing rights
not readily identifiable in the Constitution's text involves much
more than the imposition of the Justices' own choice of values on
the States and the Federal Government, the Court has sought to
identify the nature of the rights qualifying for heightened
judicial protection. In Palko v. Connecticut, 302 U.S. 319, 325,
326, 82 L.Ed 288, 58 S.Ct. 149 (1937), it was said that this
category includes those fundamental liberties that are "implicit
in the concept of ordered liberty," such that "neither liberty nor
justice would exist if [they] were sacrificed." A different
description of fundamental liberties appeared in Moore v. East
Cleveland, 431 U.S. 494, 503, 97 S. Ct. 1932, 1937, 52 L Ed. 2d
531 (1977) (opinion of POWELL, J.), where they are characterized
as those liberties that are "deeply rooted in this Nation's
history and tradition." Id. at 503, 97 S.Ct. at 1938 (POWELL, J.).

In recent years, the Court has spoken more frequently of
substantive due process interests than of fundamental due process
rights. Compare Thornburgh v. American Coll. of Obst., 476 U.S.
747, 772 (1986) (describing "fundamental right" to abortion) and
Akron v. Akron Center for Reproductive Health, Inc., 462 U.S. 416,
420 n.1 (1983) (same) with Webster v. Reproductive Health
Services, 492 U.S. 490, 520 (1989) (plurality opinion) (describing
women's entitlement to an abortion as a "liberty interest
protected by Due Process Clause"). See also Cruzan, 497 U.S. 2841.
The Court has also recently expressed a strong reluctance to find
new fundamental rights. Collins v. City of Harker Heights, Tex.,
112 S.Ct. 1061, 1068 (1992).

The Court's evolving doctrinal approach to substantive due process
claims is consistent with the basic truth enunciated by Justice
Harlan and later endorsed by the Court in Casey: "the full scope
of the liberty guaranteed by the Due Process Clause is a rational
continuum which, broadly speaking, includes a freedom from all
substantial arbitrary impositions and purposeless restraints . .
543 (1961) (Harlan, J., dissenting from dismissal on
jurisdictional grounds).[FOOTNOTE 17] As Justice Harlan noted,
some liberty interests are weightier than others. Under the
Court's traditional jurisprudence, those classified as fundamental
rights cannot be limited except to further a compelling and
narrowly tailored state interest. See Collins, 112 S.Ct. at 1068.
Other important interests, such as the liberty interest in
refusing unwanted medical treatment, are subject to a balancing
test that is less restrictive, but nonetheless requires the state
to overcome a substantial hurdle in justifying any significant
impairment.

Recent cases, including Cruzan, suggest that the Court may be
heading towards the formal adoption of the continuum approach,
along with a balancing test, in substantive due process cases
generally. If so, there would no longer be a two-tier or
three-tier set of tests that depends on the classification of the
right or interest as fundamental, important, or marginal. Instead,
the more important the individual's right or interest, the more
persuasive the justifications for infringement would have to be.
We see the evolution in the Court's approach more as a recognition
of the artificiality of the current classification system than as
a fundamental change in the Court's practical approach to specific
issues. So long as the liberty interest is an important one, the
state must shoulder the burden of justifying any significant
limitations it seeks to impose. However, we need not predict the
Court's future course in order to decide the case before us. Here,
as we have said, even under the Court's traditional mode of
analysis, a balancing test is applicable.

Nothing in Reno v. Flores, 113 S.Ct. 1439 (1993), the
insubstantial reed on which the dissent rests its case -- even
though the case was not cited by any of the parties or any of the
eleven amici who filed briefs before this court -- suggests
anything to the contrary. In Flores, the Court simply declined to
find a new fundamental right, and repeated its general reluctance
to do so. Id. at 1447. The Court did not, as the dissent implies,
purport to establish a new classification system under which all
liberty interests other than fundamental rights would be subject
to rational basis review. Nor did Flores purport to overrule, or
even hint at any desire to modify, the Court's ninety-year-old
practice of using a balancing test in liberty interest cases that
raise important issues of the type before us. In fact, Flores did
not mention Cruzan, Youngberg, Mills, Jacobsen, or any other
balancing case.[FOOTNOTE 18] While one might legitimately argue
either that the liberty interest at issue here rises to the level
of a fundamental right or that it is simply an important liberty
interest that is subject to a balancing test, one point is
absolutely clear: there can be no legitimate argument that
rational basis review is applicable, and nothing in Flores
suggests that it is.

Although in determining the existence of important rights or
liberty interests, the Court examines our history and experience,
it has stated on a number of occasions that the limits of the
substantive reach of the Due Process Clause are not frozen at any
point in time. In Casey, the Court said: "Neither the Bill of
Rights nor the specific practices of States at the time of the
adoption of the Fourteenth Amendment marks the outer limits of the
substantive sphere of liberty which the Fourteenth Amendment
protects." 112 S.Ct. at 2805. Justice Frankfurter may have put it
best when, writing for the Court in Rochin v. California, 342 U.S.
165, 171-72 (1952), he declared, "To believe that this judicial
exercise of judgment could be avoided by freezing 'due process of
law' at some fixed stage in time or thought is to suggest that the
most important aspect of constitutional adjudication is a function
for inanimate machines and not for judges . . . ." Certainly, it
would be difficult to imagine a more felicitous expression of the
dynamism of constitutional interpretation. Thus, while historical
analysis plays a useful role in any attempt to determine whether a
claimed right or liberty interest exists, earlier legislative or
judicial recognition of the right or interest is not a sine qua
non.

In Casey, the Court made it clear that the fact that we have
previously failed to acknowledge the existence of a particular
liberty interest or even that we have previously prohibited its
exercise is no barrier to recognizing its existence. In discussing
a woman's liberty interest in securing an abortion, the Casey
Court stated that pregnancy involves "suffering [that] is too
intimate and personal for the State to insist, without more, upon
its own vision of the woman's role, however dominant that vision
has been in the course of our history and culture." Casey, 112
S.Ct. at 2807 (emphasis added).

In contrast to Casey, the majority opinion of the three-judge
panel in the case now before us erroneously concluded that a
historical analysis alone is sufficient basis for rejecting
plaintiffs' claim to a substantive liberty interest or right.
Compassion In Dying, 49 F.3d at 591. As explained below, we
believe that the panel's historical account is misguided, but even
if it were indisputably correct, historical evidence alone is not
a sufficient basis for rejecting a claimed liberty
interest.[FOOTNOTE 19]

Were history our sole guide, the Virginia anti-miscegenation
statute that the Court unanimously overturned in Loving v.
Virginia, 388 U.S. 1 (1967), as violative of substantive due
process and the Equal Protection Clause, would still be in force
because such anti-miscegenation laws were commonplace both when
the United States was founded and when the Fourteenth Amendment
was adopted.[FOOTNOTE 20] The Court explicitly acknowledged as
much in Casey, 112 S.Ct. at 2805, in rejecting the view that
substantive due process protects rights or liberties only if they
possess a historical pedigree. In Casey, the Court said:

It is . . . tempting . . . to suppose that the Due Process Clause
protects only those practices, defined at the most specific level,
that were protected against government interference by other rules
of law when the Fourteenth Amendment was ratified. . . . But such
a view would be inconsistent with our law. It is a promise of the
Constitution that there is a realm of personal liberty which the
government may not enter. We have vindicated this principle
before. Marriage is mentioned nowhere in the Bill of Rights and
interracial marriage was illegal in most States in the 19th
century, but the Court was no doubt correct in finding it to be an
aspect of liberty protected against state interference by the
substantive component of the Due Process Clause in Loving v.
Virginia, 388 U.S. 1, 12, 87 S.Ct. 1817, 1824, 18 L.Ed. 2d 1010
(1967), (relying, in an opinion for eight Justices, on the Due
Process Clause). Similar examples may be found in Turner v.
Safley, 482 U.S. 78, 94-99, 107 S. Ct. 2254, 2265-67, 96 L. Ed.2d
64 (1987) [holding that prisoners have a constitutionally
protected right to marry a civilian or other inmate]; in Carey v.
Population Services International, 431 U.S. 678, 684, 686, 97 S.
Ct. 2010, 2015-2017, 52 L.Ed.2d 675 (1977) [holding that the state
cannot prohibit the sale of contraceptives to all minors or bar
everyone but licensed pharmacists from selling contraceptives to
adults]; in Griswold v. Connecticut, 381 U.S. 479, 481-82, 85 S.
Ct. 1678, 1680-81, 14 L.Ed.2d 510 (1965) [holding that a
Connecticut law forbidding the use of contraceptives
unconstitutionally intrudes on the right of marital privacy] . . .

Casey, 112 S.Ct. at 2805. Indeed, if historical evidence of
accepted practices at the time the Fourteenth Amendment was
enacted were dispositive, the Court would not only have decided
Loving differently, but it would not have held that women have a
right to have an abortion. As the dissent pointed out in Roe, more
than three-quarters of the existing states (at least 28 out of 37
states), as well as eight territorial legislatures restricted or
prohibited abortions in 1868 when the Fourteenth Amendment was
adopted. Roe, 410 U.S. at 175-76 & n.1 (Rehnquist, J.,
dissenting).

C.

Historical Attitudes Toward Suicide

The majority opinion of the three-judge panel claimed that "a
constitutional right to aid in killing oneself" was "unknown to
the past." Compassion In Dying, 49 F.3d at 591. As we have pointed
out at p. 3138, our inquiry is not so narrow. Nor is our
conclusion so facile. The relevant historical record is far more
checkered than the majority would have us believe.

Like the Court in Roe, we begin with ancient attitudes.[FOOTNOTE
21] In Greek and Roman times, far from being universally
prohibited, suicide was often considered commendable in
literature, mythology, and practice.

The first of all literary suicides, that of Oedipus' mother,
Jocasta, is made to seem praiseworthy, an honorable way out of an
insufferable situation. Homer records self-murder without comment,
as something natural and heroic. The legends bear him out. Aegeus
threw himself into the sea -- which therefore bore his name --
when he mistakenly thought his son Theseus had been slain by the
Minotaur.

A. Alvarez, The Background, in Suicide: The Philosophical Issues
18 (M.Pabst Battin and David J. Mayor, eds. 1980). In Athens, as
well as the Greek colonies of Marseilles and Ceos, magistrates
kept a supply of hemlock for those who wished to end their lives.
The magistrates even supplied those who wished to commit suicide
with the means to do so.

Whoever no longer wishes to live shall state his reasons to the
Senate, and after having received permission shall abandon life.
If your existence is hateful to you, die; if you are overwhelmed
by fate, drink the hemlock. If you are bowed with grief, abandon
life. Let the unhappy man recount his misfortune, let the
magistrate supply him with the remedy, and his wretchedness will
come to an end.[FOOTNOTE 22]

While Socrates counseled his disciples against committing suicide,
he willingly drank the hemlock as he was condemned to do, and his
example inspired others to end their lives. Id. at 19. Plato,
Socrates' most distinguished student, believed suicide was often
justifiable.

He suggested that if life itself became immoderate, then suicide
became a rational, justifiable act. Painful disease, or
intolerable constraint were sufficient reasons to depart. And this
when religious superstitions faded was philosophic justification
enough. Id.

Many contemporaries of Plato were even more inclined to find
suicide a legitimate and acceptable act. In Roe, while surveying
the attitudes of the Greeks toward abortion, the Court stated that
"only the Pythagorean school of philosophers frowned on the
related act of suicide," 410 U.S. at 131; it then noted that the
Pythagorean school represented a distinctly minority view. Id.

The Stoics glorified suicide as an act of pure rational
will.[FOOTNOTE 23] Cato, who killed himself to avoid dishonor when
Ceasar crushed his military aspirations, was the most celebrated
of the many suicides among the Stoics. Montaigne wrote of Cato:
"This was a man chosen by nature to show the heights which can be
attained by human steadfastness and constancy . . . . Such courage
is above philosophy."

Like the Greeks, the Romans often considered suicide to be
acceptable or even laudable.[FOOTNOTE 24]

To live nobly also meant to die nobly and at the right time.
Everything depended on a dominant will and a rational choice.

This attitude was reinforced by Roman law. . . . According to
Justinian's Digest, suicide of a private citizen was not
punishable if it was caused by "impatience of pain or sickness, or
by another cause," or by "weariness of life . . . lunacy, or fear
of dishonor." Since this covered every rational cause, all that
was left was the utterly irrational suicide "without cause," and
that was punishable on the grounds that "whoever does not spare
himself would much less spare another." In other words, it was
punished because irrational, not because it was a crime. Id. at
22-23.

The Romans did sometimes punish suicide. Under Roman law, people
convicted of crimes forfeited their property to the Emperor,
thereby disinheriting their heirs. Roman law imposed a special
penalty on people who were caught committing a crime and then
committed suicide prior to conviction to avoid forfeiting the
property. To protect the Emperor's interests, the property of
people who committed suicide under such circumstances was
forfeited, just as if they had been convicted of the crime
involved. Marzen at 57-58.

The early Christians saw death as an escape from the tribulations
of a fallen existence and as the doorway to heaven.[FOOTNOTE 25]
"In other words, the more powerfully the Church instilled in
believers the idea that this world was a vale of tears and sin and
temptation, where they waited uneasily until death released them
into eternal glory, the more irresistible the temptation to
suicide became." Id. at 25. The Christian impulse to martyrdom
reached its height with the Donatists, who were so eager to enter
into martyrdom that they were eventually declared heretics.
Gibbon, in the Decline and Fall of the Roman Empire, described
them this way:

They sometimes forced their way into courts of justice and
compelled the affrighted judge to give orders for their execution.
They frequently stopped travellers on the public highways and
obliged them to inflict the stroke of martyrdom by promise of a
reward, if they consented -- and by the threat of instant death,
if they refused to grant so singular a favour.[FOOTNOTE 26]

St. Augustine said of the Donatists, "to kill themselves out of
respect for martyrdom is their daily sport." Id. at 27. Prompted
in large part by the utilitarian concern that the rage for suicide
would deplete the ranks of Christians, St. Augustine argued that
committing suicide was a "detestable and damnable wickedness" and
was able to help turn the tide of public opinion. Id. Even
staunch opponents of a constitutional right to suicide acknowledge
that "there were many examples of Christian martyrs whose deaths
bordered on suicide, and confusion regarding the distinction
between suicide and martyrdom existed up until the time of St.
Augustine (354-430 A.D.)."[FOOTNOTE 27]

In 562 A.D., the Council of Braga denied funeral rites to anyone
who killed himself. A little more than a century later, in 693
A.D., the Council of Toledo declared that anyone who attempted
suicide should be excommunicated. Id. at 27-28. Once established,
the Christian view that suicide was in all cases a sin and crime
held sway for 1,000 years until philosophers, poets, and even some
clergymen -- Montesquieu, Voltaire, Diderot, Francis Bacon, David
Hume, John Donne, Sir Thomas More, among others[FOOTNOTE 28] --
began to challenge the all-encompassing nature of the dominant
ideology. In his book Utopia, Sir Thomas More, who was later
canonized by the Roman Catholic Church, strongly supported the
right of the terminally ill to commit suicide and also expressed
approval of the practice of assisting those who wished to hasten
their deaths.[FOOTNOTE 29] Hume argued that a decision by a
terminally ill patient to end his life was often
laudable.[FOOTNOTE 30] France even enacted a statute legalizing
suicide in 1790, primarily as a result of the influence of the
nation's leading philosophers.[FOOTNOTE 31]

Suicide was a crime under the English common law, at least in
limited circumstances, probably as early as the thirteenth
century.[FOOTNOTE 32] Bracton, incorporating Roman Law as set
forth in Justinian's Digest, declared that if someone commits
suicide to avoid conviction of a felony, his property escheats to
his lords.[FOOTNOTE 33] Bracton said "[i]t ought to be otherwise
if he kills himself through madness or unwillingness to endure
suffering."[FOOTNOTE 34] Despite his general fidelity to Roman
law, Bracton did introduce a key innovation: "[I]f a man slays
himself in weariness of life or because he is unwilling to endure
further bodily pain . . . he may have a successor, but his movable
goods [personal property] are confiscated. He does not lose his
inheritance [real property], only his movable goods."[FOOTNOTE 35]
Bracton's innovation was incorporated into English common law,
which has thus treated suicides resulting from the inability to
"endure further bodily pain" with compassion and understanding
ever since a common law scheme was firmly established.

Sir Edward Coke, in his Third Institute published in 1644, held
that killing oneself was an offense and that someone who committed
suicide should forfeit his movable property. But Coke listed an
exception for someone who "by the rage of sickness or infirmity or
otherwise," kills himself "while he is not of compos mentia," or
sound mind.[FOOTNOTE 36] In eighteenth century England, many and
perhaps most juries compensated for the perceived unfairness of
the law by concluding that anyone who killed himself was
necessarily not of sound mind.[FOOTNOTE 37] Thus, although,
formally, suicide was long considered a crime under English common
law, in practice it was a crime that was punished leniently, if at
all, because juries frequently used their power to nullify the
law.

The traditional English experience was also shaped by the taboos
that have long colored our views of suicide and perhaps still do
today. English common law reflected the ancient fear that the
spirit of someone who ended his own life would return to haunt the
living. Accordingly, the traditional practice was to bury the body
at a crossroads -- either so the suicide could not find his way
home or so that the frequency of travelers would keep his spirit
from rising.[FOOTNOTE 38] As added insurance, a stake was driven
through the body.

English attitudes toward suicide, including the tradition of
ignominious burial, carried over to America[FOOTNOTE 39] where
they subsequently underwent a transformation. By 1798, six of the
13 original colonies had abolished all penalties for suicide
either by statute or state constitution.[FOOTNOTE 40] There is no
evidence that any court ever imposed a punishment for suicide or
attempted suicide under common law in post-revolutionary
America.[FOOTNOTE 41] By the time the Fourteenth Amendment was
adopted in 1868, suicide was generally not punishable, and in only
nine of the 37 states is it clear that there were statutes
prohibiting assisting suicide.[FOOTNOTE 42]

The majority of states have not criminalized suicide or attempted
suicide since the turn of the century.[FOOTNOTE 43] The New Jersey
Supreme Court declared in 1901 that since suicide was not
punishable it should not be considered a crime. "[A]ll will admit
that in some cases it is ethically defensible," the court said, as
when a woman kills herself to escape being raped or "when a man
curtails weeks or months of agony of an incurable disease."
Campbell v. Supreme Conclave Improved Order Heptasophs, 66 N.J.L.
274, 49 A. 550, 553 (1901).[FOOTNOTE 44] Today, no state has a
statute prohibiting suicide or attempted suicide; nor has any
state had such a statute for at least 10 years.[FOOTNOTE 45] A
majority of states do, however, still have laws on the books
against assisting suicide.[FOOTNOTE 46]

D.

Current Societal Attitudes

Clearly the absence of a criminal sanction alone does not show
societal approbation of a practice. Nor is there any evidence that
Americans approve of suicide in general. In recent years, however,
there has been increasingly widespread support for allowing the
terminally ill to hasten their deaths and avoid painful,
undignified, and inhumane endings to their lives. Most Americans
simply do not appear to view such acts as constituting suicide,
and there is much support in reason for that conclusion. See infra
at pp. 3185-3186.

Polls have repeatedly shown that a large majority of Americans --
sometimes nearing 90% -- fully endorse recent legal changes
granting terminally ill patients, and sometimes their families,
the prerogative to accelerate their death by refusing or
terminating treatment.[FOOTNOTE 47] Other polls indicate that a
majority of Americans favor doctor-assisted suicide for the
terminally ill. In April, 1990, the Roper Report found that 64% of
Americans believed that the terminally ill should have the right
to request and receive physician aid-in-dying.[FOOTNOTE 48]
Another national poll, conducted in October 1991, shows that
"nearly two out of three Americans favor doctor-assisted suicide
and euthanasia for terminally ill patients who request
it."[FOOTNOTE 49] A 1994 Harris poll found 73% of Americans favor
legalizing physician-assisted suicide.[FOOTNOTE 50] Three states
have held referenda on proposals to allow physicians to help
terminally ill, competent adults commit suicide with somewhat
mixed results. In Oregon, voters approved the carefully-crafted
referendum by a margin of 51 to 49 percent in November of
1994.[FOOTNOTE 51] In Washington and California where the measures
contained far fewer practical safeguards, they narrowly failed to
pass, each drawing 46 percent of the vote.[FOOTNOTE 52] As such
referenda indicate, there is unquestionably growing popular
support for permitting doctors to provide assistance to terminally
ill patients who wish to hasten their deaths.[FOOTNOTE 53]

Just as the mere absence of criminal statutes prohibiting suicide
or attempted suicide does not indicate societal approval so the
mere presence of statutes criminalizing assisting in a suicide
does not necessarily indicate societal disapproval. That is
especially true when such laws are seldom, if ever, enforced.
There is no reported American case of criminal punishment being
meted out to a doctor for helping a patient hasten his own
death.[FOOTNOTE 54] The lack of enforcement of statutes
prohibiting assisting a mentally competent, terminally ill adult
to end his own life would appear to reflect widespread societal
disaffection with such laws.[FOOTNOTE 55]

Our attitudes toward suicide of the type at issue in this case are
better understood in light of our unwritten history and of
technological developments. Running beneath the official history
of legal condemnation of physician-assisted suicide is a strong
undercurrent of a time-honored but hidden practice of physicians
helping terminally ill patients to hasten their deaths.[FOOTNOTE
56] According to a survey by the American Society of Internal
Medicine, one doctor in five said he had assisted in a patient's
suicide.[FOOTNOTE 57] Accounts of doctors who have helped their
patients end their lives have appeared both in professional
journals[FOOTNOTE 58] and in the daily press.[FOOTNOTE 59]

The debate over whether terminally ill patients should have a
right to reject medical treatment or to receive aid from their
physicians in hastening their deaths has taken on a new prominence
as a result of a number of developments. Two hundred years ago
when America was founded and more than one hundred years ago when
the Fourteenth Amendment was adopted, Americans died from a slew
of illness and infirmities that killed their victims quickly but
today are almost never fatal in this nation -- scarlet fever,
cholera, measles, diarrhea, influenza, pneumonia, gastritis, to
name a few. Other diseases that have not been conquered can now
often be controlled for years, if not decades -- diseases such as
diabetes, muscular dystrophy, Parkinson's disease, cardiovascular
disease, and certain types of cancer. As a result, Americans are
living longer, and when they finally succumb to illness, lingering
longer, either in great pain or in a stuporous, semi-comatose
condition that results from the infusion of vast amounts of pain
killing medications.[FOOTNOTE 60] Despite the marvels of
technology, Americans frequently die with less dignity than they
did in the days when ravaging diseases typically ended their lives
quickly. AIDS, which often subjects its victims to a horrifying
and drawn-out demise, has also contributed to the growing number
of terminally ill patients who die protracted and painful deaths.

One result has been a growing movement to restore humanity and
dignity to the process by which Americans die.[FOOTNOTE 61] The
now recognized right to refuse or terminate treatment and the
emergent right to receive medical assistance in hastening one's
death are inevitable consequences of changes in the causes of
death, advances in medical science, and the development of new
technologies. Both the need and the capability to assist
individuals end their lives in peace and dignity have increased
exponentially.[FOOTNOTE 62]

E.

Prior Court Decisions

Next we examine previous Court decisions that delineate the
boundaries of substantive due process. We believe that a careful
examination of these decisions demonstrates that there is a strong
liberty interest in determining how and when one's life shall end,
and that an explicit recognition of that interest follows
naturally, indeed inevitably, from their reasoning.

The essence of the substantive component of the Due Process Clause
is to limit the ability of the state to intrude into the most
important matters of our lives, at least without substantial
justification.[FOOTNOTE 63] In a long line of cases, the Court has
carved out certain key moments and decisions in individuals' lives
and placed them beyond the general prohibitory authority of the
state. The Court has recognized that the Fourteenth Amendment
affords constitutional protection to personal decisions relating
to marriage, Loving v. Virginia, 388 U.S. 1 (1967), procreation,
Skinner v. Oklahoma, 316 U.S. 535 (1942), family relationships,
Prince v. Massachusetts, 321 U.S. 158 (1944), child rearing and
education, Pierce v. Society of Sisters, 268 U.S. 510, 534-535
(1925), and intercourse for purposes other than procreation,
Griswold v. Connecticut, 381 U.S. 479 (1965). The Court has
recognized the right of individuals to be free from government
interference in deciding matters as personal as whether to bear or
beget a child, Eisenstadt v. Baird, 405 U.S. 438 (1972), and
whether to continue an unwanted pregnancy to term, Roe v. Wade,
410 U.S. 113 (1973).[FOOTNOTE 64]

A common thread running through these cases is that they involve
decisions that are highly personal and intimate, as well as of
great importance to the individual.[FOOTNOTE 65] Certainly, few
decisions are more personal, intimate or important than the
decision to end one's life, especially when the reason for doing
so is to avoid excessive and protracted pain. Accordingly, we
believe the cases from Pierce through Roe provide strong general
support for our conclusion that a liberty interest in controlling
the time and manner of one's death is protected by the Due Process
Clause of the Fourteenth Amendment.

While the cases we have adverted to lend general support to our
conclusion, we believe that two relatively recent decisions of the
Court, Planned Parenthood v. Casey, 112 S.Ct. 2791 (1992) and
Cruzan v. Director, Missouri Dept. of Health, 497 U.S. 261 (1990),
are fully persuasive, and leave little doubt as to the proper
result.

F.

Liberty Interest under Casey

In Casey, the Court surveyed its prior decisions affording
"constitutional protection to personal decisions relating to
marriage, procreation, contraception, family relationships, child
rearing, and education", id. at 2807 and then said:

These matters, involving the most intimate and personal choices a
person may make in a lifetime, choices central to personal dignity
and autonomy, are central to the liberty protected by the
Fourteenth Amendment. 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.

Id. at 2807. The district judge in this case found the Court's
reasoning in Casey "highly instructive" and "almost prescriptive"
for determining "what liberty interest may inhere in a terminally
ill person's choice to commit suicide." Compassion In Dying, 850
F. Supp. at 1459. We agree.

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." A competent terminally
ill adult, having lived nearly the full measure of his life, has a
strong liberty interest in choosing a dignified and humane death
rather than being reduced at the end of his existence to a
childlike state of helplessness, diapered, sedated, incontinent.
How a person dies not only determines the nature of the final
period of his existence, but in many cases, the enduring memories
held by those who love him.

Prohibiting a terminally ill patient from hastening his death may
have an even more profound impact on that person's life than
forcing a woman to carry a pregnancy to term. The case of an AIDS
patient treated by Dr. Peter Shalit, one of the
physician-plaintiffs in this case, provides a compelling
illustration. In his declaration, Dr. Shalit described his
patient's death this way:

One patient of mine, whom I will call Smith, a fictitious name,
lingered in the hospital for weeks, his lower body so swollen from
oozing Kaposi's lesions that he could not walk, his genitals so
swollen that he required a catheter to drain his bladder, his
fingers gangrenous from clotted arteries. Patient Smith's friends
stopped visiting him because it gave them nightmares. Patient
Smith's agonies could not be relieved by medication or by the
excellent nursing care he received. Patient Smith begged for
assistance in hastening his death. As his treating doctor, it was
my professional opinion that patient Smith was mentally competent
to make a choice with respect to shortening his period of
suffering before inevitable death. I felt that I should
accommodate his request. However, because of the statute, I was
unable to assist him and he died after having been tortured for
weeks by the end-phase of his disease.[FOOTNOTE 66]

For such patients, wracked by pain and deprived of all pleasure, a
state-enforced prohibition on hastening their deaths condemns them
to unrelieved misery or torture. Surely, a person's decision
whether to endure or avoid such an existence constitutes one of
the most, if not the most, "intimate and personal choices a person
may make in a life-time," a choice that is "central to personal
dignity and autonomy." Casey, 112 S.Ct. at 2807. Surely such a
decision implicates a most vital liberty interest.

G.

Liberty Interest under Cruzan

In Cruzan, the Court considered whether or not there is a
constitutionally-protected, due process liberty interest in
terminating unwanted medical treatment. The Court said that an
affirmative answer followed almost inevitably from its prior
decisions holding that patients have a liberty interest in
refusing to submit to specific medical procedures. Those cases
include Jacobsen v. Massachusetts, 197 U.S. 11, 24-30 (1905), in
which the Court balanced an individual's liberty interest in
declining an unwanted small pox vaccine against the State's
interest in preventing disease; Washington v. Harper, 494 U.S.
210, 221-222, in which the Court said: "The forcible injection of
medication into a nonconsenting person's body represents a
substantial interference with that person's liberty"; and Parham
v. J.R., 442 U.S. 584, 600 (1979), in which it said: "[A] child,
in common with adults, has a substantial liberty interest in not
being confined unnecessarily for medical treatment". Writing for a
majority that included Justices O'Connor and Scalia, Chief Justice
Rehnquist said that those cases helped answer the first critical
question at issue in Cruzan, stating: "The principle that a
competent person has a constitutionally protected liberty interest
in refusing unwanted medical treatment may be inferred from our
prior decisions." Cruzan, 497 U.S. at 278 (emphasis
added).[FOOTNOTE 67]

In her concurrence, Justice O'Connor explained that the majority
opinion held (implicitly or otherwise) that a liberty interest in
refusing medical treatment extends to all types of medical
treatment from dialysis or artificial respirators to the provision
of food and water by tube or other artificial means. As Justice
O'Connor said: "I agree that a protected liberty interest in
refusing unwanted medical treatment may be inferred from our prior
decisions, and that the refusal of artificial delivery of food and
water is encompassed in that liberty interest." Cruzan, 497 U.S.
261, 287, 287 (O'Connor, J., concurring) (emphasis added).

Justice O'Connor further concluded that under the majority's
opinion, "[r]equiring a competent adult to endure such procedures
against her will burdens the patient's liberty, dignity, and
freedom to determine the course of her own treatment." Id. at 289
(O'Connor, J., concurring). In the majority opinion itself, Chief
Justice Rehnquist made a similar assertion, writing:

The choice between life and death is a deeply personal decision of
obvious and overwhelming finality. We believe Missouri may
legitimately seek to safeguard the personal element of this choice
through the imposition of heightened evidentiary requirements. It
cannot be disputed that the Due Process Clause protects an
interest in life as well as an interest in refusing
life-sustaining medical treatment.

Cruzan, 497 U.S. at 281 (emphasis added).

These passages make it clear that Cruzan stands for the
proposition that there is a due process liberty interest in
rejecting unwanted medical treatment, including the provision of
food and water by artificial means.[FOOTNOTE 68] Moreover, the
Court majority clearly recognized that granting the request to
remove the tubes through which Cruzan received artificial
nutrition and hydration would lead inexorably to her death.
Cruzan, 497 U.S. at 267-68, 283.[FOOTNOTE 69] Accordingly, we
conclude that Cruzan, by recognizing a liberty interest that
includes the refusal of artificial provision of life-sustaining
food and water, necessarily recognizes a liberty interest in
hastening one's own death.[FOOTNOTE 70]

H.

Summary

Casey and Cruzan provide persuasive evidence 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." Our conclusion is
strongly influenced by, but not limited to, the plight of mentally
competent, terminally ill adults. We are influenced as well by the
plight of others, such as those whose existence is reduced to a
vegetative state or a permanent and irreversible state of
unconsciousness. See note 68 supra.

Our conclusion that there is a liberty interest in determining the
time and manner of one's death does not mean that there is a
concomitant right to exercise that interest in all circumstances
or to do so free from state regulation. To the contrary, we
explicitly recognize that some prohibitory and regulatory state
action is fully consistent with constitutional principles.

In short, finding a liberty interest constitutes a critical first
step toward answering the question before us. The determination
that must now be made is whether the state's attempt to curtail
the exercise of that interest is constitutionally justified.





V.

Relevant Factors and Interests

To determine whether a state action that impairs a liberty
interest violates an individual's substantive due process rights
we must identify the factors relevant to the case at hand, assess
the state's interests and the individual's liberty interest in
light of those factors, and then weigh and balance the competing
interests. The relevant factors generally include: 1) the
importance of the various state interests, both in general and in
the factual context of the case; 2) the manner in which those
interests are furthered by the state law or regulation; 3) the
importance of the liberty interest, both in itself and in the
context in which it is being exercised; 4) the extent to which
that interest is burdened by the challenged state action; and, 5)
the consequences of upholding or overturning the statute or
regulation.

A.

The State's Interests

We analyze the factors in turn, and begin by considering the
first: the importance of the state's interests. We identify six
related state interests involved in the controversy before us: 1)
the state's general interest in preserving life; 2) the state's
more specific interest in preventing suicide; 3) the state's
interest in avoiding the involvement of third parties and in
precluding the use of arbitrary, unfair, or undue influence; 4)
the state's interest in protecting family members and loved ones;
5) the state's interest in protecting the integrity of the medical
profession; and, 6) the state's interest in avoiding adverse
consequences that might ensue if the statutory provision at issue
is declared unconstitutional.[FOOTNOTE 71]

1. Preserving Life

The state may assert an unqualified interest in preserving life in
general. As the Court said in Cruzan, "we think a State may
properly decline to make judgments about the 'quality' of life
that a particular individual may enjoy, and simply assert an
unqualified interest in the preservation of human life . . ."
Cruzan, 497 U.S. at 282. Thus, the state may assert its interest
in preserving life in all cases, including those of terminally
ill, competent adults who wish to hasten their deaths.

Although the state's interest in preserving life may be
unqualified, and may be asserted regardless of the quality of the
life or lives at issue, that interest is not always
controlling.[FOOTNOTE 72] Nor is it of the same strength in each
case. To the contrary, its strength is dependent on relevant
circumstances, including the medical condition and the wishes of
the person whose life is at stake.

Most tellingly, the state of Washington has already decided that
its interest in preserving life should ordinarily give way -- at
least in the case of competent, terminally ill adults who are
dependent on medical treatment-- to the wishes of the patients. In
its Natural Death Act, RCW 70.122.020 et seq., Washington permits
adults to have "life-sustaining treatment withheld or withdrawn in
instances of a terminal condition or permanent unconsciousness."
RCW 70.122.010.[FOOTNOTE 73] In adopting the statute, the
Washington legislature necessarily determined that the state's
interest in preserving life is not so weighty that it ought to
thwart the informed desire of a terminally ill, competent adult to
refuse medical treatment.

Not only does Washington law acknowledge that terminally ill and
permanently unconscious adults have a right to refuse
life-sustaining treatment, the statute includes specific
legislative findings that appear to recognize that a due process
liberty interest underlies that right. The statute states:

The legislature finds that adult persons have the fundamental
right to control the decisions relating to the rendering of their
own medical care, including the decision to have life-sustaining
procedures withheld or withdrawn in instances of terminal
condition.

The legislature further finds that modern medical technology has
made possible the artificial prolongation of human life beyond
natural limits.

The legislature further finds that, in the interest of protecting
individual autonomy, such prolongation of life for persons with a
terminal condition may cause loss of patient dignity, and
unnecessary pain and suffering, while providing nothing medically
necessary or beneficial to the patient.

RCW 70.122.010.[FOOTNOTE 74]

The Washington statute permits competent adults to reject
life-sustaining medical treatment in advance by means of living
wills and durable powers of attorney. RCW 70.122.010-030. Even in
cases in which the Washington Natural Death Act does not authorize
surrogate decision-making, the Washington Supreme Court has found
that legal guardians may sometimes have life-sustaining treatment
discontinued. In re Guardianship of Grant, 747 P.2d 445 (Wash.
1987); In re Colyer, 660 P.2d 738 (Wash. 1983).[FOOTNOTE 75]

There is nothing unusual about Washington's recognition that the
state's interest in preserving life is not always of the same
force and that in some cases at least other considerations may
outweigh the state's.[FOOTNOTE 76] More than 40 other states have
adopted living will statutes that permit competent adults to
declare by advance directive that they do not wish to be kept
alive by medical treatment in the latter stages of a terminal
illness.[FOOTNOTE 77] Like Washington, many states also permit
competent adults to determine in advance that they do not wish any
medical treatment should they become permanently and irreversibly
unconscious.[FOOTNOTE 78] Also, like Washington, many states allow
patients to delegate decision-making power to a surrogate through
a durable power of attorney, health care proxy, or similar device,
or permit courts to appoint surrogate decision-makers.[FOOTNOTE
79] Finally, Congress favors permitting adult patients to refuse
life-sustaining treatment by advance directive and requires
hospitals receiving federal financial support to notify adult
patients of their rights to execute such instruments upon
admission.[FOOTNOTE 80]

As the laws in state after state demonstrate, even though the
protection of life is one of the state's most important functions,
the state's interest is dramatically diminished if the person it
seeks to protect is terminally ill or permanently comatose and has
expressed a wish that he be permitted to die without further
medical treatment (or if a duly appointed representative has done
so on his behalf). When patients are no longer able to pursue
liberty or happiness and do not wish to pursue life, the state's
interest in forcing them to remain alive is clearly less
compelling. Thus, while the state may still seek to prolong the
lives of terminally ill or comatose patients or, more likely, to
enact regulations that will safeguard the manner in which
decisions to hasten death are made, the strength of the state's
interest is substantially reduced in such circumstances.

2. Preventing Suicide

a.

While the state's general commitment to the preservation of life
clearly encompasses the prevention of suicide, the state has an
even more particular interest in deterring the taking of one's own
life. The fact that neither Washington nor any other state
currently bans suicide, or attempted suicide, does not mean that
the state does not have a valid and important interest in
preventing or discouraging that act.

During the course of this litigation, the state has relied on its
interest in the prevention of suicide as its primary justification
for its statute.[FOOTNOTE 81] The state points to statistics
concerning the rate of suicide among various age groups,
particularly the young. Compassion In Dying, 850 F.Supp. at 1464.
As the state notes, in 1991, suicide was the second leading cause
of death after accidents for the age groups 15-19, 20-24, and
25-34 and one of the top five causes of death for age groups 35-44
and 45-54.[FOOTNOTE 82] These figures are indeed distressing.

Although suicide by teenagers and young adults is especially
tragic, the state has a clear interest in preventing anyone, no
matter what age, from taking his own life in a fit of desperation,
depression, or loneliness or as a result of any other problem,
physical or psychological, which can be significantly ameliorated.
Studies show that many suicides are committed by people who are
suffering from treatable mental disorders. Most if not all states
provide for the involuntary commitment of such persons if they are
likely to physically harm themselves. For similar reasons, at
least a dozen states allow the use of nondeadly force to prevent
suicide attempts.[FOOTNOTE 83]

While the state has a legitimate interest in preventing suicides
in general, that interest, like the state's interest in preserving
life, is substantially diminished in the case of terminally ill,
competent adults who wish to die.[FOOTNOTE 84] One of the
heartaches of suicide is the senseless loss of a life ended
prematurely. In the case of a terminally ill adult who ends his
life in the final stages of an incurable and painful degenerative
disease, in order to avoid debilitating pain and a humiliating
death, the decision to commit suicide is not senseless, and death
does not come too early.[FOOTNOTE 85] Unlike "the depressed
twenty-one year old, the romantically devastated twenty-eight year
old, the alcoholic forty-year old," Compassion In Dying, 49 F.3d
at 590-91, or many others who may be inclined to commit suicide, a
terminally ill competent adult cannot be cured. While some people
who contemplate suicide can be restored to a state of physical and
mental well-being, terminally ill adults who wish to die can only
be maintained in a debilitated and deteriorating state, unable to
enjoy the presence of family or friends. Not only is the state's
interest in preventing such individuals from hastening their
deaths of comparatively little weight, but its insistence on
frustrating their wishes seems cruel indeed.[FOOTNOTE 86] As Kent
said in King Lear, when signs of life were seen in the dying
monarch:

Vex not his ghost: O! let him pass; he hate him That would upon
the rack of this tough world Stretch him out longer.[FOOTNOTE 87]

b.

The state has explicitly recognized that its interests are
frequently insufficient to override the wishes of competent,
terminally ill adult patients who desire to bring their lives to
an end with the assistance of a physician. Step by step, the state
has acknowledged that terminally ill persons are entitled in a
whole variety of circumstances to hasten their deaths, and that in
such cases their physicians may assist in the process. Until
relatively recently, while physicians routinely helped patients to
hasten their deaths, they did so discreetly because almost all
such assistance was illegal. However, beginning about twenty years
ago a series of dramatic changes took place. Each provoked the
type of division and debate that surrounds the issue before us
today. Each time the state's interests were ultimately
subordinated to the liberty interests of the individual, in part
as a result of legal actions and in part as a result of a growing
recognition by the medical community and society at large that a
more enlightened approach was essential.

The first major breakthrough occurred when the terminally ill were
permitted to reject medical treatment.[FOOTNOTE 88] The line was
drawn initially at extraordinary medical treatment because the
distinction between ordinary and extraordinary treatment appeared
to some to offer the courts an objective, scientific standard that
would enable them to recognize the right to refuse certain medical
treatment without also recognizing a right to suicide or
euthanasia.[FOOTNOTE 89] That distinction, however, quickly proved
unworkable, and after a while, terminally ill patients were
allowed to reject both extraordinary and ordinary treatment. For a
while, rejection of treatment, often through "do not resuscitate"
orders, was permitted, but termination was not. This dividing
line, which rested on the illusory distinction between commission
and omission (or active and passive), also appeared for a short
time to offer a natural point of repose for doctors, patients and
the law. However, it, too, quickly proved untenable, and
ultimately patients were allowed both to refuse and to terminate
medical treatment,[FOOTNOTE 90] ordinary as well as extraordinary.
Today, many states also allow the terminally ill to order their
physicians to discontinue not just traditional medical treatment
but the artificial provision of life-sustaining food and water,
thus permitting the patients to die by self-starvation. Equally
important, today, doctors are generally permitted to administer
death-inducing medication, as long as they can point to a
concomitant pain-relieving purpose.

In light of these drastic changes regarding acceptable medical
practices, opponents of physician-assisted suicide must now
explain precisely what it is about the physician's conduct in
assisted suicide cases that distinguishes it from the conduct that
the state has explicitly authorized. The state responds by urging
that physician-assisted suicide is different in kind, not degree,
from the type of physician-life-ending conduct that is now
authorized, for three separate reasons. It argues that "assisted
suicide": 1) requires doctors to play an active role; 2) causes
deaths that would not result from the patient's underlying
disease; and 3) requires doctors to provide the causal agent of
patients' deaths.

The distinctions suggested by the state do not individually or
collectively serve to distinguish the medical practices society
currently accepts. The first distinction -- the line between
commission and omission -- is a distinction without a difference
now that patients are permitted not only to decline all medical
treatment, but to instruct their doctors to terminate whatever
treatment, artificial or otherwise, they are receiving. In
disconnecting a respirator, or authorizing its disconnection, a
doctor is unquestionably committing an act; he is taking an active
role in bringing about the patient's death. In fact, there can be
no doubt that in such instances the doctor intends that, as the
result of his action, the patient will die an earlier death than
he otherwise would.

Similarly, drawing a distinction on the basis of whether the
patient's death results from an underlying disease no longer has
any legitimacy. While the distinction may once have seemed
tenable, at least from a metaphysical standpoint, it was not based
on a valid or practical legal foundation and was therefore quickly
abandoned. When Nancy Cruzan's feeding and hydration tube was
removed, she did not die of an underlying disease. Rather, she was
allowed to starve to death.[FOOTNOTE 91] In fact, Ms. Cruzan was
not even terminally ill at the time, but had a life expectancy of
30 years.[FOOTNOTE 92] Similarly, when a doctor provides a
conscious patient with medication to ease his discomfort while he
starves himself to death -- a practice that is not only legal but
has been urged as an alternative to assisted suicide[FOOTNOTE 93]
-- the patient does not die of any underlying ailment. To the
contrary, the doctor is helping the patient end his life by
providing medication that makes it possible for the patient to
achieve suicide by starvation.

Nor is the state's third and final distinction valid. Contrary to
the state's assertion, given current medical practices and current
medical ethics, it is not possible to distinguish prohibited from
permissible medical conduct on the basis of whether the medication
provided by the doctor will cause the patient's death. As part of
the tradition of administering comfort care, doctors have been
supplying the causal agent of patients' deaths for decades.
Physicians routinely and openly provide medication to terminally
ill patients with the knowledge that it will have a "double
effect" -- reduce the patient's pain and hasten his
death.[FOOTNOTE 94] Such medical treatment is accepted by the
medical profession as meeting its highest ethical
standards.[FOOTNOTE 95] It commonly takes the form of putting a
patient on an intravenous morphine drip, with full knowledge that,
while such treatment will alleviate his pain, it will also
indubitably hasten his death.[FOOTNOTE 96] There can be no doubt,
therefore, that the actual cause of the patient's death is the
drug administered by the physician or by a person acting under his
supervision or direction. Thus, the causation argument is simply
"another bridge crossed" in the journey to vindicate the liberty
interests of the terminally ill, and the state's third distinction
has no more force than the other two.

c.

We acknowledge that in some respects a recognition of the
legitimacy of physician-assisted suicide would constitute an
additional step beyond what the courts have previously approved.
We also acknowledge that judicial acceptance of physician-assisted
suicide would cause many sincere persons with strong moral or
religious convictions great distress. Nevertheless, we do not
believe that the state's interest in preventing that additional
step is significantly greater than its interest in preventing the
other forms of life-ending medical conduct that doctors now engage
in regularly. More specifically, we see little, if any, difference
for constitutional or ethical purposes between providing
medication with a double effect and providing medication with a
single effect, as long as one of the known effects in each case is
to hasten the end of the patient's life. Similarly, we see no
ethical or constitutionally cognizable difference between a
doctor's pulling the plug on a respirator and his prescribing
drugs which will permit a terminally ill patient to end his own
life. In fact, some might argue that pulling the plug is a more
culpable and aggressive act on the doctor's part and provides more
reason for criminal prosecution. To us, what matters most is that
the death of the patient is the intended result as surely in one
case as in the other. In sum, we find the state's interests in
preventing suicide do not make its interests substantially
stronger here than in cases involving other forms of
death-hastening medical intervention. To the extent that a
difference exists, we conclude that it is one of degree and not of
kind.

d.

Moreover, we are doubtful that deaths resulting from terminally
ill patients taking medication prescribed by their doctors should
be classified as "suicide." Certainly, we see little basis for
such a classification when deaths that result from patients'
decisions to terminate life support systems or to refuse
life-sustaining food and water, for example, are not. We believe
that there is a strong argument that a decision by a terminally
ill patient to hasten by medical means a death that is already in
process, should not be classified as suicide. Thus,
notwithstanding the generally accepted use of the term
"physician-assisted suicide," we have serious doubt that the
state's interest in preventing suicide is even implicated in this
case.

e.

In addition to the state's purported interest in preventing
suicide, it has an additional interest in preventing deaths that
occur as a result of errors in medical or legal judgment. We
acknowledge that it is sometimes impossible to predict with
certainty the duration of a terminally ill patient's remaining
existence, just as it is sometimes impossible to say for certain
whether a borderline individual is or is not mentally
competent.[FOOTNOTE 97] However, we believe that sufficient
safeguards can and will be developed by the state and medical
profession, see infra p. 3204, to ensure that the possibility of
error will ordinarily be remote. Finally, although life and death
decisions are of the gravest order, should an error actually occur
it is likely to benefit the individual by permitting a victim of
unmanageable pain and suffering to end his life peacefully and
with dignity at the time he deems most desirable.[FOOTNOTE 98]

3. Avoiding the Involvement of Third Parties, and Precluding the
Use of Arbitrary, Unfair, or Undue Influence

a.

A state may properly assert an interest in prohibiting even
altruistic assistance to a person contemplating suicide on the
grounds that allowing others to help may increase the incidence of
suicide, undercut society's commitment to the sanctity of life,
and, adversely affect the person providing the assistance. In
addition, joint action is generally considered more serious than
action by a single person. While we recognize that these concerns
are legitimate, the most important -- the first two -- diminish in
importance to the same extent that the state's interest in
preventing the act itself diminishes. All are at their minimums
when the assistance is provided by or under the supervision or
direction of a doctor and the recipient is a terminally ill
patient.

In upholding Washington's statute, the majority of the three-judge
panel relied heavily on the state's interest in preventing the
exercise of undue, arbitrary or unfair influences over the
individual's decision to end his life. Compassion In Dying, 49
F.3d at 592-93. We agree that this is an important interest, but
for entirely different reasons than the majority suggests. One of
the majority's prime arguments is that the statute is necessary to
protect "the poor and minorities from exploitation," 49 F.3d at
592 -- in other words, to protect the disadvantaged from becoming
the victims of assisted suicide. This rationale simply recycles
one of the more disingenuous and fallacious arguments raised in
opposition to the legalization of abortion.[FOOTNOTE 99] It is
equally meretricious here. In fact, as with abortion, there is far
more reason to raise the opposite concern: the concern that the
poor and the minorities, who have historically received the least
adequate health care, will not be afforded a fair opportunity to
obtain the medical assistance to which they are entitled -- the
assistance that would allow them to end their lives with a measure
of dignity. The argument that disadvantaged persons will receive
more medical services than the remainder of the population in one,
and only one, area -- assisted suicide -- is ludicrous on its
face. So, too, is the argument that the poor and the minorities
will rush to volunteer for physician-assisted suicide because of
their inability to secure adequate medical treatment.

Our analysis is similar regarding the argument relating to the
handicapped. Again, the opponents of physician-assisted suicide
urge a variation of the discredited anti-abortion argument.
Despite the dire predictions, the disabled were not pressured into
seeking abortions. Nor is it likely that the disabled will be
pressured into committing physician-assisted suicide.
Organizations representing the physically impaired are
sufficiently active politically and sufficiently vigilant that
they would soon put a halt to any effort to employ assisted
suicide in a manner that affected their clients unfairly. There
are other more subtle concerns, however, advanced by some
representatives of the physically impaired, including the fear
that certain physical disabilities will erroneously be deemed to
make life "valueless." While we recognize the legitimacy of these
concerns, we also recognize that seriously impaired individuals
will, along with non-impaired individuals, be the beneficiaries of
the liberty interest asserted here -- and that if they are not
afforded the option to control their own fate, they like many
others will be compelled, against their will, to endure unusual
and protracted suffering. The resolution that would be best for
all, of course, would be to ensure that the practice of assisted
suicide is conducted fairly and well, and that adequate safeguards
sufficient to avoid the feared abuses are adopted and enforced.

b.

There is a far more serious concern regarding third parties that
we must consider -- one not even mentioned by the majority in the
panel opinion. That concern is the fear that infirm, elderly
persons will come under undue pressure to end their lives from
callous, financially burdened, or self-interested relatives, or
others who have influence over them. The risk of undue influence
is real -- and it exists today. Persons with a stake in the
outcome may now pressure the terminally ill to reject or decline
life-saving treatment or take other steps likely to hasten their
demise. Surrogates may make unfeeling life and death decisions for
their incompetent relatives. This concern deserves serious
consideration, as it did when the decision was made some time ago
to permit the termination of life-support systems and the
withdrawal or withholding of other forms of medical treatment, and
when it was decided to recognize living wills, durable powers of
attorney, and the right of courts to appoint substitute
decision-makers. While we do not minimize the concern, the
temptation to exert undue pressure is ordinarily tempered to a
substantial degree in the case of the terminally ill by the
knowledge that the person will die shortly in any event. Given the
possibility of undue influence that already exists, the
recognition of the right to physician-assisted suicide would not
increase that risk unduly. In fact, the direct involvement of an
impartial and professional third party in the decision-making
process would more likely provide an important safeguard against
such abuse.

We also realize that terminally ill patients may well feel
pressured to hasten their deaths, not because of improper conduct
by their loved ones, but rather for an opposite reason -- out of
concern for the economic welfare of their loved ones. Faced with
the prospect of astronomical medical bills, terminally ill
patients might decide that it is better for them to die before
their health care expenses consume the life savings they planned
to leave for their families, or, worse yet, burden their families
with debts they may never be able to satisfy. While state
regulations can help ensure that patients do not make rash,
uninformed, or ill considered decisions, we are reluctant to say
that, in a society in which the costs of protracted health care
can be so exorbitant, it is improper for competent, terminally ill
adults to take the economic welfare of their families and loved
ones into consideration.

Throughout its analysis, the dissent relies heavily on Professor
Kamisar, a long-time, outspoken, and nationally-recognized
opponent of assisted-suicide. Following Professor Kamisar's lead,
our dissenting colleagues suggest that the nation's priorities are
misplaced because some of the problems we address result from the
"lack of universal access to medical care." Dissent at 3249. We
would be inclined to agree that the country's refusal to provide
universal health care, and the concomitant suffering so many
Americans are forced to undergo, demonstrates a serious flaw in
our national values. One answer, of course, is that concerns over
the absence of decent medical coverage in this country should be
addressed to Congress, which, if it recognizes the values the
dissenters and others espouse, will surely enact the
sorely-needed, health-care legislation it has up to now rejected.
As members of the judicial branch, however, we are compelled to
stand aside from that battle. On the other hand, we are certainly
not obligated to pile injury upon injury by holding that all of
our citizens may be subjected to the prospect of needless pain,
suffering, and degradation at the end of their lives, either
because of our concern over Congress' failure to provide
government-insured health care or alternatively in order to
satisfy the moral or religious precepts of a portion of the
population.

c.

We are also aware of the concern that doctors become hardened to
the inevitability of death and to the plight of terminally ill
patients, and that they will treat requests to die in a routine
and impersonal manner, rather than affording the careful,
thorough, individualized attention that each request deserves. The
day of the family doctor who made house calls and knew the
frailties and strengths of each family member is long gone. So,
too, in the main, is the intense personal interest that doctors
used to take in their patients' welfare and activities. Doctors
like the rest of society face constantly increasing pressures, and
may not always have the patience to deal with the elderly, some of
whom can be both difficult and troublesome. Nevertheless, there
are many doctors who specialize in geriatric care and there are
many more who are not specialists but who treat elderly patients
with great compassion and sensitivity. We believe that most, if
not all, doctors would not assist a terminally ill patient to
hasten his death as long as there were any reasonable chance of
alleviating the patient's suffering or enabling him to live under
tolerable conditions. We also believe that physicians would not
assist a patient to end his life if there were any significant
doubt about the patient's true wishes. To do so would be contrary
to the physicians' fundamental training, their conservative
nature, and the ethics of their profession. In any case, since
doctors are highly-regulated professionals, it should not be
difficult for the state or the profession itself to establish
rules and procedures that will ensure that the occasional
negligent or careless recommendation by a licensed physician will
not result in an uninformed or erroneous decision by the patient
or his family.

Having said all this, we do not dismiss the legitimate concerns
that exist regarding undue influence. While steps can be taken to
minimize the danger substantially, the concerns cannot be wholly
eliminated. Accordingly, they are of more than minimal weight and,
in balancing the competing interests, we treat them seriously.

4. Effect on Children, Other Family Members, and Loved Ones

The state clearly has a legitimate interest in safeguarding the
interests of innocent third parties such as minor children and
other family members dependent on persons who wish to commit
suicide. That state interest, however, is of almost negligible
weight when the patient is terminally ill and his death is
imminent and inevitable. The state cannot help a minor child or
any other innocent third party by forcing a terminally ill patient
to die a more protracted and painful death. In fact, witnessing a
loved one suffer a slow and agonizing death as a result of state
compulsion is more likely to harm than further the interests of
innocent third parties.[FOOTNOTE 100]

5. Protecting the Integrity of the Medical Profession

The state has a legitimate interest in assuring the integrity of
the medical profession, an interest that includes prohibiting
physicians from engaging in conduct that is at odds with their
role as healers.[FOOTNOTE 101] We do not believe that the
integrity of the medical profession would be threatened in any way
by the vindication of the liberty interest at issue here. Rather,
it is the existence of a statute that criminalizes the provision
of medical assistance to patients in need that could create
conflicts with the doctors' professional obligations and make
covert criminals out of honorable, dedicated, and compassionate
individuals.

The assertion that the legalization of physician-assisted suicide
will erode the commitment of doctors to help their patients rests
both on an ignorance of what numbers of doctors have been doing
for a considerable time and on a misunderstanding of the proper
function of a physician. As we have previously noted, doctors have
been discreetly helping terminally ill patients hasten their
deaths for decades and probably centuries, while acknowledging
privately that there was no other medical purpose to their
actions. They have done so with the tacit approval of a
substantial percentage of both the public and the medical
profession, and without in any way diluting their commitment to
their patients.

In addition, as we also noted earlier, doctors may now openly take
actions that will result in the deaths of their patients. They may
terminate life-support systems, withdraw life-sustaining
gastronomy tubes, otherwise terminate or withhold all other forms
of medical treatment, and, may even administer lethal doses of
drugs with full knowledge of their "double effect."[FOOTNOTE 102]
Given the similarity between what doctors are now permitted to do
and what the plaintiffs assert they should be permitted to do, we
see no risk at all to the integrity of the profession. This is a
conclusion that is shared by a growing number of doctors who
openly support physician-assisted suicide and proclaim it to be
fully compatible with the physicians' calling and with their
commitment and obligation to help the sick.[FOOTNOTE 103] Many
more doctors support physician-assisted suicide but without openly
advocating a change in the legal treatment of the practice. A
recent study of Oregon physicians found that 60% of those who
responded believed that physician-assisted suicide should be
legal.[FOOTNOTE 104] A recent study of attitudes among physicians
in Michigan, where the state legislature adopted a law banning
assisted-suicide as a result of Dr. Jack Kevorkian's activities,
found that only 17.2% of the physicians who responded favored a
law prohibiting assisted-suicide. Almost all the rest supported
one of three options: legalizing physician-assisted suicide
(38.9%); permitting the medical profession to regulate the
practice (16.1%); or leaving decisions about physician-assisted
suicide to the doctor-patient relationship (16.6%).[FOOTNOTE 105]
Thus over 70% of the Michigan doctors answering the poll appear to
believe that professional ethics do not preclude doctors from
engaging in acts that today are classified as "assisted suicide."
Even among those doctors who oppose assisted suicide medical
ethics do not lie at the heart of the objections. The "most
important personal characteristic" separating those doctors from
their colleagues is a strong religious identification.[FOOTNOTE
106]

Whether or not a patient can be cured, the doctor has an
obligation to attempt to alleviate his pain and suffering. If it
is impossible to cure the patient or retard the advance of his
disease, then the doctor's primary duty is to make the patient as
comfortable as possible. When performing that task, the doctor is
performing a proper medical function, even though he knows that
his patient's death is a necessary and inevitable consequence of
his actions.[FOOTNOTE 107]

As noted earlier, the American Medical Association filed an amicus
brief urging that we uphold the practice of administering medicine
with a dual effect. At the same time, it takes the position that
physician-assisted suicide should not be legalized, at least as of
this time.[FOOTNOTE 108] Twenty years ago, the AMA contended that
performing abortions violated the Hippocratic Oath; today, it
claims that assisting terminally ill patients to hasten their
death does likewise. Clearly, the Hippocratic Oath can have no
greater import in deciding the constitutionality of physician
assisted-suicide than it did in determining whether women had a
constitutional right to have an abortion. In Roe, the Court cited
a scholar's conclusion that the Hippocratic Oath "originated in a
group representing only a small segment of Greek opinion and that
it certainly was not accepted by all ancient physicians." The
Court stressed the Oath's "rigidity" and was not deterred by its
prohibitory language regarding abortion.[FOOTNOTE 109] As Roe
shows, a literalist reading of the Hippocratic Oath does not
represent the best or final word on medical or legal controversies
today.[FOOTNOTE 110] Were we to adhere to the rigid language of
the oath, not only would doctors be barred from performing
abortions or helping terminally ill patients hasten their deaths,
but according to a once-accepted interpretation, they would also
be prohibited from performing any type of surgery at all,[FOOTNOTE
111] a position that would now be recognized as preposterous by
even the most tradition-bound AMA members. More important,
regardless of the AMA or its position, experience shows that most
doctors can readily adapt to a changing legal climate. Once the
Court held that a woman has a constitutional right to have an
abortion, doctors began performing abortions routinely and the
ethical integrity of the medical profession remained undiminished.
Similarly, following the recognition of a constitutional right to
assisted suicide, we believe that doctors would engage in the
permitted practice when appropriate, and that the integrity of the
medical profession would survive without blemish.

Recognizing the right to "assisted-suicide" would not require
doctors to do anything contrary to their individual principles. A
physician whose moral or religious beliefs would prevent him from
assisting a patient to hasten his death would be free to follow
the dictates of his conscience. Those doctors who believe that
terminally ill, competent, adult patients should be permitted to
choose the time and manner of their death would be able to help
them do so. We believe that extending a choice to doctors as well
as to patients would help protect the integrity of the medical
profession without compromising the rights or principles of
individual doctors and without sacrificing the welfare of their
patients.[FOOTNOTE 112]

6. Fear of Adverse Consequences

We now consider the state's final concern. Those opposed to
permitting physician-assisted suicide often point to a concern
that could be subsumed under the state's general interest in
preserving life, but which for clarity's sake we treat separately.
The argument is a purely pragmatic one that causes many people
deep concern: permitting physician-assisted suicide would "open
Pandora's Box."[FOOTNOTE 113]

Once we recognize a liberty interest in hastening one's death, the
argument goes, that interest will sweep away all restrictions in
its wake. It will only be a matter of time, the argument
continues, before courts will sanction putting people to death,
not because they are desperately ill and want to die, but because
they are deemed to pose an unjustifiable burden on
society.[FOOTNOTE 114] Known as a slippery slope argument or what
one commentator has called the "thin edge of the wedge"
argument,[FOOTNOTE 115] the opponents of assisted-suicide conjure
up a parade of horribles and insist that the only way to halt the
downward spiral is to stop it before it starts. See Compassion In
Dying, 49 F.3d at 590-91 (providing list of horribles).

This same nihilistic argument can be offered against any
constitutionally-protected right or interest. Both before and
after women were found to have a right to have an abortion,
critics contended that legalizing that medical procedure would
lead to its widespread use as a substitute for other forms of
birth control or as a means of racial genocide. Inflammatory
contentions regarding ways in which the recognition of the right
would lead to the ruination of the country did not, however, deter
the Supreme Court from first recognizing and then two decades
later reaffirming a constitutionally-protected liberty interest in
terminating an unwanted pregnancy. In fact, the Court has never
refused to recognize a substantive due process liberty right or
interest merely because there were difficulties in determining
when and how to limit its exercise or because others might someday
attempt to use it improperly.

Recognition of any right creates the possibility of abuse. The
slippery slope fears of Roe's opponents have, of course, not
materialized. The legalization of abortion has not undermined our
commitment to life generally; nor, as some predicted, has it led
to widespread infanticide. Similarly, there is no reason to
believe that legalizing assisted suicide will lead to the horrific
consequences its opponents suggest.

The slippery slope argument also comes in a second and closely
related form. This version of the argument states that a due
process interest in hastening one's death, even if the exercise of
that interest is initially limited to the terminally ill, will
prove infinitely expansive because it will be impossible to define
the term "terminally ill." See Compassion In Dying, 49 F.3d at
593. (After all, all of us are terminal in some sense of the word,
are we not?). See id. The argument rests on two false premises.
First it presupposes a need for greater precision than is required
in constitutional law.[FOOTNOTE 116] Second, it assumes that the
terms "terminal illness" or "terminal condition" cannot be
defined, even though those terms have in fact been defined
repeatedly. They have, for example, been defined in a model
statute, The Uniform Rights of the Terminally Ill Act,[FOOTNOTE
117] and in more than 40 state natural death statutes,[FOOTNOTE
118] including Washington's. The model statute and some of the
state statutes have defined the term without reference to a fixed
time period; others have taken the opposite approach, defining
terminal to mean that death is likely to ensue within six months.
As we have noted earlier, the Washington Act, like some others,
includes persons who are permanently unconscious, that is in an
irreversible coma or a persistent vegetative state. RCW
70.122.020(6). While defining the term "terminally ill" is not
free from difficulty, the experience of the states has proved that
the class of the terminally ill is neither indefinable nor
undefined. Indeed, all of the persons described in the various
statutes would appear to fall within an appropriate definition of
the term. In any event, it is apparent that purported definitional
difficulties that have repeatedly been surmounted provide no
legitimate reason for refusing to recognize a liberty interest in
hastening one's death.

We do not dispute the dissent's contention that the prescription
of lethal medication by physicians for use by terminally ill
patients who wish to die does not constitute a clear point of
demarcation between permissible and impermissible medical conduct.
We agree that it may be difficult to make a principled distinction
between physician-assisted suicide and the provision to terminally
ill patients of other forms of life-ending medical assistance,
such as the administration of drugs by a physician. We recognize
that in some instances, the patient may be unable to
self-administer the drugs and that administration by the
physician, or a person acting under his direction or control, may
be the only way the patient may be able to receive them.[FOOTNOTE
119] The question whether that type of physician conduct may be
constitutionally prohibited must be answered directly in future
cases, and not in this one. We would be less than candid, however,
if we did not acknowledge that for present purposes we view the
critical line in right-to-die cases as the one between the
voluntary and involuntary termination of an individual's life. In
the first case -- volitional death -- the physician is aiding or
assisting a patient who wishes to exercise a liberty interest, and
in the other -- involuntary death -- another person acting on his
own behalf, or, in some instances society's, is determining that
an individual's life should no longer continue.[FOOTNOTE 120] We
consider it less important who administers the medication than who
determines whether the terminally ill person's life shall end. In
any event, here we decide only the issue before us -- the
constitutionality of prohibiting doctors from prescribing
medication for use by terminally ill patients who wish to hasten
their death.

B.

The Means by Which the State Furthers Its Interests

In applying the balancing test, we must take into account not only
the strength of the state's interests but also the means by which
the state has chosen to further those interests.

1. Prohibition -- A Total Ban for the Terminally Ill

Washington's statute prohibiting assisted suicide has a drastic
impact on the terminally ill. By prohibiting physician assistance,
it bars what for many terminally ill patients is the only
palatable, and only pra********************************************************************************************************************************************************************************************************************************************************************************************************************************************************************************************************************************************************************************************************************************e technique generally
depends, however, on the assistance of a physician, whether tacit
or unknowing (although it is possible to end one's life with
over-the-counter medication). Even if the terminally ill patients
are able to accumulate sufficient drugs, given the pain killers
and other medication they are taking, most of them would lack the
knowledge to determine what dose of any given drug or drugs they
must take, or in what combination. Miscalculation can be tragic.
It can lead to an even more painful and lingering death.
Alternatively, if the medication reduces respiration enough to
restrict the flow of oxygen to the brain but not enough to cause
death, it can result in the patient's falling into a comatose or
vegetative state.

Thus for many terminally ill patients, the Washington statute is
effectively a prohibition. While technically it only prohibits one
means of exercising a liberty interest, practically it prohibits
the exercise of that interest as effectively as prohibiting
doctors from performing abortions prevented women from having
abortions in the days before Roe.[FOOTNOTE 121]

2. Regulation -- A Permissible Means of Promoting State Interests

State laws or regulations governing physician-assisted suicide are
both necessary and desirable to ensure against errors and abuse,
and to protect legitimate state interests. Any of several model
statutes might serve as an example of how these legitimate and
important concerns can be addressed effectively.[FOOTNOTE 122]

By adopting appropriate, reasonable, and properly drawn safeguards
Washington could ensure that people who choose to have their
doctors prescribe lethal doses of medication are truly competent
and meet all of the requisite standards. Without endorsing the
constitutionality of any particular procedural safeguards, we note
that the state might, for example, require: witnesses to ensure
voluntariness; reasonable, though short, waiting periods to
prevent rash decisions; second medical opinions to confirm a
patient's terminal status and also to confirm that the patient has
been receiving proper treatment, including adequate comfort care;
psychological examinations to ensure that the patient is not
suffering from momentary or treatable depression; reporting
procedures that will aid in the avoidance of abuse. Alternatively,
such safeguards could be adopted by interested medical
associations and other organizations involved in the provision of
health care, so long as they meet the state's needs and
concerns.[FOOTNOTE 123]

While there is always room for error in any human endeavor, we
believe that sufficient protections can and will be developed by
the various states, with the assistance of the medical profession
and health care industry, to ensure that the possibility of error
will be remote. We do not expect that, in this nation, the
development of appropriate statutes and regulations will be taken
lightly by any of the interested parties, or that those charged
with their enforcement will fail to perform their duties properly.

In treating a prohibition differently from a regulation, we are
following the approach that the Court took in the only
right-to-die case to come before it. In Cruzan, the Court
recognized that the states had a legitimate role to play in
regulating the process of refusing or terminating life-sustaining
medical treatment even if they could not prohibit the making of
decisions that met applicable state standards. The Court
explicitly recognized that states did not have to refrain from
acting, but rather could adopt appropriate regulations to further
their legitimate interests. Missouri's requirement for clear and
convincing evidence of a patient's wishes was a regulation
designed to reduce the risk of erroneous decisions. The Court
upheld that regulation, a requirement that, of course, had far
less impact on the exercise of the due process liberty interest
than the de facto prohibition at issue here.

To those who argue that courts should refrain from declaring that
the terminally ill have a constitutional right to
physician-assisted suicide and that we should leave such matters
to the individual states, we reply that where important liberty
interests are at stake it is not the proper role of the state to
adopt statutes totally prohibiting their exercise. Rather, the
state should enact regulatory measures that ensure that the
exercise of those interests is properly circumscribed and that all
necessary safeguards have been provided. In the case of abortions
and in the case of the withdrawal of life-sustaining medical
treatment, the Court permitted states to enact appropriate
regulations that would further its legitimate interests. In this
case, like the others, the guiding principle is found in the words
of Justice O'Connor. "[T]he more challenging task of crafting
appropriate procedures for safeguarding . . . [terminally ill
patients'] liberty interests is entrusted to the 'laboratory' of
the states in the first instance." Cruzan 497 U.S. at 287, 292
(O'Connor, J., concurring) (internal citation omitted).[FOOTNOTE
124]

C.

The Strength of the Liberty Interest

Earlier in the opinion we described the liberty interest at issue
here and explained its importance. We also explained that the
strength of that interest is dependent on a number of factors,
especially the individual's physical condition. We noted that an
individual's liberty interest in hastening his death is at its low
point when that person is young and healthy, because forcing a
robust individual to continue living does not, at least absent
extraordinary circumstances, subject him to "pain . . . [and]
suffering that is too intimate and personal for the State to
insist on . . . ." Casey, 112 S.Ct. at 2807. As we also made
clear, when a mentally competent adult is terminally ill, and
wishes, free of any coercion, to hasten his death because his
remaining days are an unmitigated torture, that person's liberty
interest is at its height. For such a person, being forced to live
is indeed being subjected to "pain . . . [and] suffering that is
too intimate and personal for the State to insist on . . . ." Id.

D.

The Burden on the Liberty Interest

We have also previously discussed at some length the nature and
extent of the burden that the Washington statute imposes on the
liberty interest. Here, we need only mention some of the specific
evidence introduced by the plaintiffs and refer to some of our
earlier analysis. The plaintiffs offered considerable specific
testimony involving individual patients that strongly supports
their claims that the Washington statute frequently presents an
insuperable obstacle to terminally ill persons who wish to hasten
their deaths by peaceful means. The testimony produced by the
plaintiffs shows that many terminally ill patients who wish to die
with dignity are forced to resort to gruesome alternatives because
of the unavailability of physician assistance. One such patient, a
34-year-old man dying from AIDS and lymphoma, asked his physician
for drugs to hasten his inevitable death after enduring four
excruciatingly painful months because he did not wish to die in a
hospital in a drug-induced stupor. His doctor, Dr. Harold
Glucksberg, one of the physician plaintiffs in this case, refused
because he feared prosecution under Washington Statute RCW
9A.36.060. Denied medical assistance, the patient ended his life
by jumping from the West Seattle bridge and plummeting to his
death.[FOOTNOTE 125] Fortunately, he did not survive the plunge
and require permanent hospitalization in an even more exacerbated
state of pain.

Deprived of physician assistance, another terminally ill patient
took his own life by withholding his insulin and letting himself
die of insulin shock.[FOOTNOTE 126] Like many terminally ill
patients, one individual killed himself in a secretive and lonely
fashion, in order to spare his family from possible criminal
charges; as a result he was deprived of a chance to die in a
dignified manner with his loved ones at his side. The man's
daughter described her father's death this way:
When he realized that my family was going to be away for a day, he
wrote us a beautiful letter, went down to his basement, and shot
himself with his 12 gauge shot gun. He was 84. . . My son-in-law
then had the unfortunate and unpleasant task of cleaning my
father's splattered brains off the basement walls.[FOOTNOTE 127]

The plaintiffs also produced testimony showing that some
terminally ill patients who try to kill themselves are
unsuccessful, maiming instead of killing themselves, or that they
succeed only after subjecting themselves to needless, excruciating
pain.[FOOTNOTE 128] One such terminally ill patient, a mentally
competent woman in her 80s suffering from metastatic breast
cancer, sought medication to hasten her death from her primary
care physician, Dr. Abigail Halperin, one of the physician
plaintiffs in this case. Although Dr. Halperin believed, in her
professional judgment, that she should accommodate her patient's
wishes, she did not do so because she feared prosecution under
Washington statute RCW 9A.36.060. The patient acted on her own to
hasten her death by placing